People v. Dodt

• Decision Date: 31 March 1983
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard DODT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 275

462 N.Y.S.2d 275

92 A.D.2d 1063

The PEOPLE of the State of New York, Respondent, v. Richard DODT, Appellant.

Supreme Court, Appellate Division Third Department.

March 31, 1983.

Paul E. Cheeseman, Albany (Peter R. Porco, Albany, of counsel) for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (F. Patrick Jeffers, Asst. Dist. Atty., Albany, of counsel) for respondent.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered August 24, 1981, upon a verdict convicting defendant of the crime of kidnapping in the second degree.

On February 20, 1981, at about 12:15 A.M., Theresa Culp, a nurse at Albany Medical Center, finished work and walked across New Scotland Avenue to her car which was located in a well-lighted parking lot. As she was about to unlock her car door, an adult male ran up behind her and fell down in front of her car, precipitating a conversation for about two minutes. When Mrs. Culp then turned to enter her car, the male grabbed her from behind, put one hand over her mouth, and pushed her some 40 feet toward his car, which had the passenger door open. While being pushed in this fashion, her assailant stated several times, "Don't scream, lady, I've got a gun in my pocket." As they approached his car, she was able to forcefully bite his finger, causing him to release her. As she screamed, he fled to his car. She observed him driving away from the scene and again later in the vicinity of her home.

At approximately 5:00 A.M. the following day, two Albany police officers on routine patrol observed a vehicle matching the description given police by Mrs. Culp contained in a teletype they received before going on duty. They stopped the vehicle, and one of the officers noted that defendant, who was driving, fit the general description of the individual also contained in the teletype. The car was impounded, and defendant brought to the police station where later that morning he was identified by the victim in a lineup. Defendant was indicted for kidnapping in the second degree (Penal Law, § 135.20). Following his unsuccessful motion to suppress the victim's identification, he was tried and convicted.

The first issue raised on this appeal is whether the evidence was legally sufficient to support his conviction for kidnapping in the second degree. Specifically, defendant contends that there was a failure of proof that defendant "abducted" the victim, a necessary element of the crime. "Abduct" is defined, in relevant part, as "to restrain a person with intent to prevent his liberation by * * * using or threatening to use deadly physical force" (Penal Law, § 135.00, subd. 2). There is no dispute that the victim was "restrained", and clearly, a jury could infer from the severe physical restraint coupled with the repeated statements referring to his possession of a gun, that the restraint was accomplished by "threatening to use deadly physical force". Defendant contends, however, that in the absence of proof that he actually had a gun capable of inflicting death or serious physical injury, there was insufficient evidence to establish abduction by threat, as a matter of law, relying on People v. Fraczak, 103 Misc.2d 388, 425 N.Y.S.2d 963. Fraczak, holding that restraint by a threat to explode what proved to be a sham grenade did not constitute the crime of kidnapping, is distinguishable. Based upon statements in earlier cases that the crime was to be restricted to instances where there was "a genuine 'kidnapping' flavor", the court read into the definition of "abduct" that the threat used "must be capable of present realization" (id. at 390-391, 425 N.Y.S.2d 963). We decline to follow Fraczak and hold that the evidence here was sufficient. First, the legislative history is devoid of support for an interpretation beyond the literal meaning of the phrase "threatening to use deadly physical force". Under these circumstances, we are obliged to give effect to the fair import of the words used in the statute, without further limitations or restrictions (Penal Law, § 5.00; People v. Brengard, 265 N.Y. 100, 107, 191 N.E. 850; People v. Morton, 284 App.Div. 413, 417, 132 N.Y.S.2d 302, affd. 308 N.Y. 96, 123 N.E.2d 790). Applying the literal meaning of the definition is also consistent with other provisions of the Penal Law defining various serious criminal offenses in terms of a reasonably perceived threat to inflict serious physical injury without requiring proof that the threat was capable of realization (see, e.g., the definition of "forcible compulsion" for purposes of the definitions of rape in the first degree [Penal Law, § 130.35], sodomy in the first degree [Penal Law, § 130.50] and sexual abuse in the first degree [Penal Law, § 130.65] ). Moreover, elsewhere in the kidnapping article, the Legislature had no difficulty in articulating its intention to require proof of an actual, rather than a merely perceived, danger of serious physical injury (see unlawful imprisonment in the first degree [Penal Law, § 135.10] ). Since it is virtually impossible to establish that a threat to use deadly physical force is "capable of present realization" short of proof of the abductor's possession of an operable gun, knife or other dangerous instrument, the effect of the Fraczak interpretation is to engraft a weapons possession requirement into the definition of the crime. This would not only restrict effective prosecution of kidnapping in the second degree, but also of kidnapping in the first degree, which similarly contains abduction as a necessary element.

We likewise reject defendant's contention that he could not be convicted of kidnapping under the doctrine of merger. Here, there was a total absence of any evidence of the commission or attempted commission of any other crime to which the abduction of the victim was incidental or inseperable from, and therefore there was nothing into which the kidnapping could merge (People v. Smith, 47 N.Y.2d 83, 87, 416 N.Y.S.2d 784, 390 N.E.2d 291).

Defendant contends deprivation of his constitutional rights in the failure to suppress both pretrial and in-court identification by the victim. This argument is predicated on the failure of the prosecution to establish reasonable cause for the stop of his vehicle and the ensuing arrest. Initially, we find that there is a sufficient basis in the record to sustain the suppression court's finding that the stop of defendant's automobile was made upon probable cause. The dissent has quoted from the testimony of Officer Turley at the suppression hearing, but has failed to take cognizance of the testimony of the victim, which demonstrates that she described the crime, the perpetrator and his automobile to the police. She testified:

Q: And what, if anything, did Lt. Dean state to you at that period of time or at that time?

A: That they had picked up a suspect that matched the description of the person that I had said assaulted me. (Emphasis added.)

This testimony must be considered together with that of the police officer. The following question and answer appear:

Q: Now, I believe you testified that prior to going on duty at roll call you had received certain information about a certain vehicle or incident? (Emphasis added.)

A. That's correct.

Although the teletype message was not received in evidence, we hold there was sufficient basis from the testimony to support the court's finding of probable cause.

While the burden remains on the People at the suppression hearing to establish reasonable cause to believe an offense had been committed by defendant, we believe that burden has been met. The police were entitled to act on the strength of the teletype message received before going on duty. Where such a report furnishes probable cause to make a stop or an arrest, the sender's knowledge is imputed to the receiver, and when the receiver acts, he presumptively possesses the requisite probable cause (People v. Bowdoin, 89 A.D.2d 986, 454 N.Y.S.2d 149). While this presumption may be rebutted (People v. Lypka, 36 N.Y.2d 210, 212-213, 366 N.Y.S.2d 622, 326 N.E.2d 294), it is only when the sending officer's communication is called into question that the People must demonstrate that the sending agency itself possessed the requisite probable cause to act (see People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269; People v. Lypka, supra ). However, before the People may be called upon to support the presumption by an evidentiary showing, the defendant must specifically challenge the reliability of the sender's information as opposed to the sufficiency of the information provided, or independently possessed by the receiver. Where, as here, a motion to suppress does not attack the underlying basis for a police radio report, the presumption of probable cause to issue it remains (People v. Bowdoin, supra; see, also, People v. Jenkins, 47 N.Y.2d 722, 417 N.Y.S.2d 57, 390 N.E.2d 775). To challenge reliability, it must be interjected in a manner to fairly apprise the court and opposing party that it is being contested (People v. Bowdoin, supra, 89 A.D.2d at supra, p. 987, 454 N.Y.S.2d 149). At bar, defendant's supporting affidavit failed to either specifically or generally attack the teletype message or the reliability of the sender's or receiver's information. Nor did defendant raise this issue in his cross-examination of Officer Turley. Therefore, the People were not required to produce the sending officer (People v. Jenkins, supra; People v. Bowdoin, supra, 89 A.D.2d at p. 987, 454 N.Y.S.2d 149), and the presumption of probable cause remained intact. Nor can we agree that defendant was either placed under arrest or in custody at the time his vehicle was stopped. There is no such indication in the record, and his attorney's moving affidavit concedes he was not formally placed under arrest at this time. Officer Turley's uncontradicted testimony was that he "asked" defendant to come...