People v. Discala

• Decision Date: 11 July 1978
• Parties: , 379 N.E.2d 187 The PEOPLE of the State of New York, Respondent, v. John DISCALA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 660

407 N.Y.S.2d 660

45 N.Y.2d 38, 379 N.E.2d 187

The PEOPLE of the State of New York, Respondent, v. John DISCALA, Appellant.

Court of Appeals of New York.

July 11, 1978.

Roger H. Briton, New York City, for appellant.

Mario Merola, Dist. Atty. (Steven J. Greenblatt, Brooklyn, and Alan D. Marrus, New York City, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Judge.

In a one-count indictment defendant was charged with the crime of attempted coercion in the first degree, for which he was convicted following trial. On this appeal, he contends that the trial court erred in refusing to charge the lesser included offense of attempted coercion in the second degree. In light of the evidence, we find this argument to be without merit, as did the majority in the Appellate Division, and we therefore affirm.

Underlying the attempted coercion was the theft of a number of employee payroll checks by one Garrido, an administrator of Bronx Children's Hospital. Implicated in the stealing was defendant's uncle, Joseph Sasso, a maintenance man at the hospital. The evidence at trial showed that while the indictments for these crimes were pending, defendant placed a telephone call to Dr. E. Richard Feinberg, director of the hospital. In the conversation that ensued, defendant urged Feinberg to use his influence to have the indictments dismissed. Upon learning that his request would not be honored, defendant threatened Feinberg, telling him that he could kill him or have him killed.

Based on these threats, defendant was charged with attempted coercion in the first degree in an indictment alleging in pertinent part that: "said defendant, on or about the 21st day of April, 1973 did attempt to compel and induce Dr. E. Richard Feinberg, Director, Bronx Childrens Hospital, Bronx County, to engage in conduct which the latter had a legal right to abstain from engaging in, or to abstain from engaging in conduct in which Dr. Feinberg had a legal right to engage, by instilling in the said Dr. Feinberg that he, the defendant, would cause physical injury to the said Dr. Feinberg. Specifically, the said defendant attempted to compel and induce the said Dr. Feinberg to use his influence regarding pending Bonx County indictments."

The crime of coercion may be committed by compelling the victim to engage in conduct from which he had a legal right to abstain by instilling in him a fear that if the demand is not complied with a person will be physically injured or property damaged. When the crime is committed in this fashion, it is an anomaly of our statutes that the language used to define the felony of coercion in the first degree (Penal Law, § 135.65) is virtually identical to that employed to describe the misdemeanor of coercion in the second degree (Penal Law, § 135.60). However, this is not as surprising or troublesome as it may at first appear since, in another context involving a constitutional challenge to the felony statute, this court elucidated the purpose behind each of the two degrees of the crime (People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746). Guided by commentaries and after examining other provisions of law, this court explained that: "under the related coercion statutes, 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 misdemeanor 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" (34 N.Y.2d, at p. 287, 357 N.Y.S.2d, at p. 438, 313 N.E.2d, at p. 748).

Since the statutory definition for the felony crime sets forth as one of its elements that "(a) person is guilty of coercion in the first degree when he commits the crime of coercion in the second degree" (Penal Law, § 135.65), in this case it was "impossible" to commit the first degree offense " without concomitantly committing, by the same conduct" the second degree crime (see CPL 1.20, subd. 37). Therefore, it follows that the misdemeanor of coercion is a lesser included offense of felony coercion and should be charged, if requested, "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50, subd. 1; see, e. g., People v. Johnson, 39 N.Y.2d 364, 367, 384 N.Y.S.2d 108, 109, 348 N.E.2d 564, 565).

In deciding whether to submit a lesser included offense to the jury, it has been emphasized that "(t)he court's appraisal of the persuasiveness of the evidence indicating guilt of the higher count is irrelevant" (People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 566, 359 N.E.2d 1357, 1360). Rather, 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 (Id.). In other words, it is not for the Trial Judge to speculate as to what will be the ultimate finding of the jury; the court simply determines if there is a reasonable view of the facts which would support a conviction of the lesser crime but not the greater. The evidence must be viewed in the light most favorable to the defendant (People v. Shuman, 37 N.Y.2d 302, 304, 372 N.Y.S.2d 60, 61, 333 N.E.2d 363, 364; People v. Battle, 22 N.Y.2d 323, 292 N.Y.S.2d 661, 239 N.E.2d 535), and a court must recognize that the jury may decide to accept only part of the prosecution's proof (People v. Asan, 22 N.Y.2d 526, 530, 293 N.Y.S.2d 326, 328, 239 N.E.2d 913, 914). The net effect of submitting the lesser charge may be that the jury will simply extend mercy, but this is acknowledged to be an "inevitable consequence of the jury system" (People v. Mussenden, 308 N.Y. 558, 562, 127 N.E.2d 551, 553; see People v. Malave, 21 N.Y.2d 26, 29, 286 N.Y.S.2d 245, 247, 233 N.E.2d 269, 271; People v. Clemente, 285 App.Div. 258, 264, 136 N.Y.S.2d 202, 207, affd. 309 N.Y. 890, 131 N.E.2d 294).

The coercion statutes present a peculiar problem with respect to lesser included offenses. At first blush, because of the identity of language, it may be logically compelling to suppose that in most if not all cases it is for the jury to assess whether the threat lacked the requisite heinousness needed to convict of the greater crime. However despite the broad latitude given the jury, the court is not required to submit the lesser degree "in every case" (...