dissents, and votes to reverse the judgment appealed from, on the law and as a matter of discretion in the interest of justice, and to dismiss counts three and four of the indictment, with the following memorandum, in which Santucci, J., concurs: I respectfully dissent. Although the trial court initially provided the jury with the correct charge in describing the elements of the crime of falsely reporting an incident in the third degree (see Penal Law § 240.50 [3] [a]), the trial court subsequently erred when it later omitted the element that the false report must be “gratuitously” made. Thereafter, upon a jury verdict, the defendant was convicted of two counts of falsely reporting an incident in the third degree. As the defendant acknowledges, this contention is unpreserved for appellate review (see CPL 470.05 [2]), but I would reach it in the exercise of our interest of justice jurisdiction and reverse the judgment of conviction.
Among other cases, the majority relies upon People v Dekle (56 NY2d 835 [1982]) to conclude that the evidence was legally sufficient to establish the defendant’s guilt of falsely reporting an incident in the third degree beyond a reasonable doubt. In Dekle, the defendant moved for a trial order of dismissal of a robbery count on the ground that there was no possibility of the existence of an “immediate” threat of use of physical force since the defendant was unable to open a folded knife that required two hands to open, and the defendant had only one *949hand free. The trial court denied the defendant’s motion, charging the jury that “immediate” had its ordinary meaning, and did not require proof of a specific, limited lapse of time, measured from the onset of the altercation, in order to convict him. The defendant did not object to that definition. On appeal, the defendant argued, for the first time, that the trial court should have charged the jury that the word “immediate” requires some minimal temporal and geographic proximity to the taking of the property. Dekle is distinguishable from the instant case, as the Court of Appeals does not have interest of justice jurisdiction. Moreover, in Dekle, the trial court did charge the jury with respect to all of the elements of the crime, whereas the trial court here failed to include the element of gratuitousness in the subject charge.
Although the word “gratuitously” is undefined in the Penal Law, this Court has held that a defendant does not commit the crime of falsely reporting an incident in the third degree when the defendant does not initiate contact with the police and merely gives false information in response to an officer’s inquiries (see People v Clairborne, 36 AD2d 500 [1971], revd on other grounds 29 NY2d 950 [1972]; cf. People v Ellis, 77 AD3d 496 [2010] [evidence established that a defendant’s 911 call in which he reported an assault that did not occur was a “gratuitous” report within the meaning of Penal Law § 240.50 (3), where no one compelled the defendant to place the call and the defendant’s supervisor, at most, suggested that he do so]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally insufficient to support the defendant’s convictions beyond a reasonable doubt. Under the circumstances, it cannot be said that the defendant “gratuitously” reported false information to the police (see Penal Law § 240.50 [3] [a]; People v Clairborne, 36 AD2d 500 [1971]; People v Oliver, 193 Misc 2d 250 [2002]; People v Li, 192 Misc 2d 380 [2002]; People ex rel. Morris v Skinner, 67 Misc 2d 221 [1971]).
Moreover, even assuming that the evidence was legally sufficient, I believe that the defendant was also deprived of his right to a fair trial because the trial court failed to adequately “state the material legal principles applicable to [this] case” (CPL 300.10 [2]; see People v Cordes, 71 AD3d 912 [2010]; People v Alvarez, 96 AD2d 864, 865 [1983]; People v Davila, 59 AD2d 536, 537 [1977]). As the evidence of the defendant’s guilt was not overwhelming, harmless error analysis is inapplicable (see People v Crimmins, 36 NY2d 230, 241 [1975]). Inasmuch as the defendant has already completed his sentence, the appropriate *950remedy is not a new trial but the dismissal of counts three and four of the indictment charging him with violating Penal Law § 240.50 (3) (a) (see People v Flynn, 79 NY2d 879, 882 [1992]; People v Simmons, 32 NY2d 250, 253 [1973]; People v Barreto, 70 AD3d 959, 959-960 [2010]).