People v. Burgess

• Decision Date: 14 January 1985
• Parties: The PEOPLE, etc., Respondent, v. Clifford BURGESS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 58

484 N.Y.S.2d 58

107 A.D.2d 703

The PEOPLE, etc., Respondent, v. Clifford BURGESS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 14, 1985.

Matthew Muraskin, Mineola (Michael J. Obus and Norman Scott Banks, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Bruce E. Whitney, Mineola, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered December 7, 1981, convicting him of robbery in the first degree, rape in the first degree (two counts), kidnapping in the second degree (two counts), and sexual abuse in the first degree (two counts), upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the convictions of kidnapping in the second degree, vacating the sentences imposed thereon, and dismissing said counts. As so modified, judgment affirmed.

During the late evening of December 10, 1980, defendant and two others entered the Taco Bell Restaurant located on Hicksville Road, Massapequa, Nassau County. Producing a shot gun, the men held up the restaurant and then forced two young women employees to accompany them to an automobile that was in the restaurant parking lot. The women were driven to a dead end street in Suffolk County where the men raped and sexually abused them. The drive took approximately 20 minutes. During the drive, while the perpetrators and their victims were apparently still in Nassau County, defendant placed his hand under one of the women's shirt and fondled her breast. He also told the women that if they went to the police they and their families would be killed. During this time, he still had a gun in his possession.

On this appeal, defendant argues that his convictions for rape must be reversed on the ground that since the rapes took place in Suffolk County, Nassau County did not have jurisdiction to bring him to trial on those offenses. Defendant's contention is unavailing. CPL 20.40 (subd. 1, par. ) provides that a county has jurisdiction over a criminal offense when conduct occurred within such county sufficient to establish "an element of such offense". The People have the burden of proving the issue of geographical jurisdiction by a preponderance of the evidence, which issue is a question for the jury (People v. Moore, 46 N.Y.2d 1, 412 N.Y.S.2d 795, 385 N.E.2d 535). Subdivision 1 of section 130.05 of the Penal Law provides that a man is guilty of rape in the first degree when he engages in sexual intercourse with a woman by forcible compulsion. At the time of the incident, subdivision 8 of section 130.00 of the Penal Law defined forcible compulsion as "physical force which is capable of overcoming earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped".

Although defendant argues that the force displayed in Nassau County was "incidental and remote from the force ultimately exerted upon the complainants in Suffolk", by no stretch of the imagination can his conduct in forcing the women into a car at gun point, fondling one of the women's breasts as they proceeded from Nassau to Suffolk, and threatening their lives, be considered "incidental" or "remote" from the rapes that followed. Rather, the force, physical and by threat, continued uninterrupted from the moment he displayed his weapon at the restaurant until he released...