People v. Clairborne

Munder, J. (dissenting in part).

I concur in the dismissal of the indictment insofar as it concerns the violation of criminal solicitation in the third degree, on the authority of People v. Du Pont (28 A D 2d 1135), but otherwise dissent and vote to affirm the judgment convicting the defendant of falsely reporting an incident.

Defendant, upon her plea of guilty, was convicted of falsely reporting an incident (Penal Law, § 240.50). The majority would overturn that conviction because the alleged false report was in response to a police inquiry and thus was not made gratuitously ”, as contemplated in subdivision 3 of section 240.50.

I cannot agree with such a narrow interpretation. To me, in the context of the statute, if the false report is given ‘ ‘ freely ’ ’, i.e., in the absence of compulsion, it is given gratuitously. The fact that it is given in response to a question, per se, does not destroy its free nature. Here, in answer to a routine question, *502the defendant gave false information relating to a knifing on her premises. That is enough for conviction.

In addition, it is my view that by her plea the defendant supplied the necessary elements of the crime for which she was convicted (see People v. Griffin, 7 N Y 2d 511; see, also, People v. Jacoby, 304 N. Y. 33, 40). The court, by reason of the trial, was aware of the circumstances surrounding the defendant’s report to the police. There was, therefore, no need to question her further or to reject her guilty plea when it was offered.

Rabin, P. J., Shapiro and Brennan, JJ., concur with Christ, J., Munder, J., dissents in part, in a separate opinion.

Judgment of the County Court, Orange County, rendered September 18, 1970, reversed, on the law, and indictment dismissed.