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LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction after considering the unpreserved issue in the interest of justice, determined the People did not present legally sufficient evidence of the “falsifying a business record” charge. The People alleged defendant lied to the sheriff who interviewed him resulting in a false entry in the sheriff’s report. The report itself was not entered into evidence:

… [T]o meet its burden, the prosecution relied on testimony from a county sheriff’s office sergeant that, during the investigation into a shooting incident, he recorded his conversation with defendant in a report and the report became part of the business records for the sheriff’s office. The sergeant as well as additional sheriff’s deputies testified that defendant’s version of events conflicted with the concurrent observations of defendant’s gunshot wound by the members of the sheriff’s office. The People’s theory was that, by lying to the sergeant, defendant caused a false entry in the business records of the sheriff’s office. The trial testimony established, however, that the sergeant’s report was written to record the “condition or activity” of the sheriff’s office’s investigation into the shooting (Penal Law § 175.00 [2]). We conclude that there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded beyond a reasonable doubt that the sergeant’s report contained a false record of that investigation. Indeed, the sergeant testified that the report accurately documented defendant’s responses to the sergeant’s investigatory questions. People v Andrews, 2023 NY Slip Op 05085, Fourth Dept 10-6-23

Practice Point: The Appellate Division can consider an unpreserved “legally insufficient evidence” issue.

Practice Point: Lying to an investigator who records the lie in the investigation report cannot be the basis for a “falsifying a business record” charge.

 

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