(CITE AS: 111 MISC.2D 592, 444 N.Y.S.2D 810)
The PEOPLE of the State of New York
v.
Richard DUPONT, Defendant.
Supreme Court, Trial Term,
New York County, Part 68.
Sept. 22, 1981.
Robert Morgenthau, Dist. Atty., New York County, New York
City, for the People; Merri Bernstein and Harold Wilson, Asst.
Dist. Attys., New York City, of counsel.
JOHN KLOTZ, New York City, for defendant.
MEMORANDUM DECISION
BENTLEY KASSAL, Justice:
Defendant's request that the court submit the crime of attempt
ed coercion in the second degree to the jury as a lesser included
offense of attempted coercion in the first degree is being
granted. The apparent similarity of the statutory language
defining these two crimes and the dearth of authority as to the
distinction between the two requires that I elucidate the basis
for this decision.
APPLICABLE STATUTES
The first count of the indictment charges defendant with the
commission of the crime of attempted coercion in the first
degree in violation of Penal Law 135.65(1), a class D felony.
(The alleged attempt to commit this crime is irrelevant for
purposes of this decision and will be disregarded.) Defendant
has made a request that I submit the lesser included crime of
coercion in the second degree in violation of Penal Law
135.60(2), a class A misdemeanor. A close examination of the
pertinent provisions of Penal Law sections 135.65(1) and
135.60(2) reveals that these sections use the identical language
to define the felony of first degree coercion and the misde
meanor of second degree coercion when the criminal conduct
charged relates to the fear of damage to property having been
instilled in the victim. Thus, resort was made to decisional
sources.
CASE LAW
Two relatively recent Court of Appeals decisions discuss the
confusion created by this legislative anomaly.
In the first, People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435,
313 N.E.2d 746 (1974), the defendant "challenged the statute
defining coercion as a felony as violative of the constitutional
guarantees of due process and equal protection in that exactly
the same elements are required for coercion in the second degree,
a misdemeanor, ..." (at p. 284, 357 N.Y.S.2d 435, 313 N.E.2d
746).
In upholding the prosecutorial discretion present in this
situation, as well as the constitutionality of both statutes,
the Court reasoned as follows (at p. 287, 357 N.Y.S.2d 435, 313
N.E.2d 746):
"... it is likely that despite the verbal duplication in the
lower degree, the drafters and the Legislature intended that the
general rule be that coercion in the first degree, the felony,
be charged whenever the method of coercion was to instill a fear
of injury to a person or damage to property. Making the misde
meanor offense 'all inclusive' is apparently a 'safety-valve'
feature included in the event an unusual factual situation should
develop where the method of coercion is literally by threat of
personal or property injury, but for some reason it lacks the
heinous quality the Legislature associated with such threats.
[Emphasis added.]
In People v. Discala, 45 N.Y.2d 38, 407 N.Y.S.2d 660, 379
N.E.2d 187 (1978), the second decision on point, Judge Cooke,
writing for a unanimous Court of Appeals, affirmed the trial
court's refusal to charge the lesser included offense of at
tempted coercion in the second degree. Discala is factually
distinguishable from the present case, since it involved a threat
to kill or have someone killed, as opposed to a threat to damage
property. Nevertheless, this decision is valuable for the
guidance it provides for the proper interpretation to be accord
ed the coercion statutes in issue. The Discala court initially
noted that
"In deciding whether to submit a lesser included offense to
the jury, ... the focus is on whether there is some reasonable
basis in the evidence for finding the accused innocent of the
higher crime, and yet guilty of the lower one." (p. 41, 407
N.Y.S.2d 660, 379 N.E.2d 187--citation omitted).
After citing the quoted " 'safety-valve' feature" language from
Eboli, supra, with approval, the court held
"that there was no error here in refusing to submit to the
jury the lesser included offense of attempted second degree
coercion. That charge should be reserved for the 'unusual
factual situation', not presented by the evidence here, where
the method of coercion is by threat of personal physical injury
which for some reason lacks a heinous quality." (p. 43, 407
N.Y.S.2d 660, 379 N.E.2d 187) [Emphasis added]
Research has uncovered only one appellate decision in which
both Eboli, supra, and Discala, supra, are relied upon. In
People v. Hertz, 77 A.D.2d 885, 430 N.Y.S.2d 665 (2d Dept.,
1980), which also involved threats to kill a person, the court
held that
"the trial court, under the circumstances, committed revers
ible error in refusing defendant's request to submit the crime
of coercion in the second degree to the jury as a lesser includ
ed offense." (p. 886, 430 N.Y.S.2d 665).
This conclusion was based upon the court's determination that
"the heinous intent behind the threats is questionable" so that
"These circumstances, viewed in a light most favorable to
defendant, could lead a reasonable jury to conclude that the
coercion practiced had been of a nonheinous [sic] nature. The
trial court, therefore, was obligated to submit the lesser
included offense to the jury as requested." (p. 887, 430
N.Y.S.2d 665) [Emphasis added.]
DEFENDANT'S REQUEST TO CHARGE
Based upon those authorities, I am granting defendant's request
to charge coercion in the second degree, as a lesser included
offense under the indictment count alleging commission of first
degree coercion involving threats to damage property. I do so
based upon my finding that there is a reasonable basis in the
evidence for the jury to conclude that defendant was only guilty
of the lesser of these two crimes. In so charging the jury, I
intend to instruct them in the following manner concerning the
"heinous" nature of the alleged threats:
That the defendant's threat to damage property was of a
heinous nature. The word "heinous", as used here, according to
Webster's Dictionary means "extremely wicked" or "shockingly
evil". In this regard, I charge you that in the usual case
involving a threat to cause property damage, such threats should
be viewed by you as being heinous. It is only in the unusual or
rare case that such threats do not rise to the degree or level
of being heinous.
