People v. Eboli

• Decision Date: 05 June 1974
• Citation: 357 N.Y.S.2d 435,313 N.E.2d 746,34 N.Y.2d 281
• Parties: , 313 N.E.2d 746 The PEOPLE of the State of New York, Respondent, v. Ralph EBOLI, also known as Lou Eboli, and Anthony Caccavale, also known as Tony Caccavale, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 435

357 N.Y.S.2d 435

34 N.Y.2d 281, 313 N.E.2d 746

The PEOPLE of the State of New York, Respondent, v. Ralph EBOLI, also known as Lou Eboli, and Anthony Caccavale also known as Tony Caccavale, Appellants.

Court of Appeals of New York.

June 5, 1974.

Frederic Block, Centereach, for appellants.

George Aspland, Dist. Atty. (James J. Cruise, Jr., Asst. Dist. Atty., of counsel), for respondent.

SAMUEL RABIN, Judge.

The defendants Ralph Eboli and Anthony Caccavale were convicted of attempted coercion in the first degree; conspiracy in the third degree; and three counts of assault in the third degree. The evidence at trial showed that the defendants were attempting to coerce Nicholas Travato into making them his business partners in a bar he operated and partially owned. There was also evidence that Caccavale assaulted Travato with a bar stool and pounded his head onto a cement floor, and that Eboli assaulted a friend of Travato's. Travato testified that these beatings occurred at his bar on the same evening that he told the defendants that he preferred to 'sink or swim' on his own in the operation of the bar.

The principal issue on this appeal concerns the conviction of attempted coercion in the first degree, a class E felony. Defendants challenge 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, and the choice of the felony or misdemeanor charge is left solely in the discretion of the prosecutor.

Coercion in the first degree is defined in section 135.65 of the Penal Law, Consol.Laws, c. 40, which provides in subdivision one: 'A person is guilty of coercion in the first degree when he commits the crime of coercion in the second degree, and when: 1. He commits such crime by instilling in the victim a fear that he will cause physical injury to a person or cause damage to property'. First degree coercion is a class D felony, and the classification is reduced one grade, to a class E felony, if the crime, as here, is attempted coercion.

Coercion in the second degree, a class A misdemeanor, is defined in section 135.60 of the Penal Law which provides in pertinent part: 'A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:

'1. Cause physical injury to a person; or

'2. Cause damage to property'.

This section also contains seven other subdivision listing other methods of committing misdemeanor coercion including instilling a fear that the actor or another will engage in other conduct constituting a crime, will accuse some person of a crime, will expose a secret, will cause a boycott, etc. As to these other types of threats, there is a difference between coercion in the first and second degrees. However, except for a minor variation in language, ¹ the crimes of coercion in the first and second degree are identical when the coercion is committed by instilling a fear that a person will be physically injured or that property will be damaged. It is said this identity of elements in the misdemeanor and felony definitions violates the Constitution because, in effect, it grants the prosecutor the power to subject similarly situated defendants to either felony or misdemeanor convictions. While we agree that the statutes as written offer wide prosecutorial discretion, we do not agree that the discretion is such as to render either statute unconstitutional.

It is true that the statutes themselves contain no indication as to when the felony prosecution is more appropriate than the misdemeanor prosecution. However, the Practice Commentaries accompanying the statutes do supply some guidance. Messrs. Denzer and McQuillan, members of the commission which drafted the section, state with regard to the felony coercion section that the 'crime of coercion is here aggravated to a higher degree (a class D felony) where the threat is one to cause physical injury or property damage (§ 135.65(1)).' (Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39 Penal Law, § 135.65.) ² This comment suggests that, despite the misdemeanor section, coercion by either of these means, was intended to be prosecuted as a felony.

This suggestion is strengthened by an examination of the sections defining the closely related crime of extortion, 'basically a form of coercion in which the act compelled is the payment of money.' (Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 135.60). Larceny by extortion is defined in the same manner as basic coercion (the misdemeanor) with the addition of the element of obtaining property as a result of the threat (Penal Law, § 155.05, subd. 2, par. (e)). Extortion is an element in two degrees of grand larceny. The crime of grand larceny in the third degree, a class E felony, is committed when 'property, regardless of its nature and value, is obtained by extortion'. (Penal Law, § 155.30, subd. 6.) As noted above, the definition of extortion, like misdemeanor coercion, includes threats of personal injury or property damage. Grand larceny in the first degree, a class C felony, is committed when property is stolen and when 'the property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property'. (Penal Law, § 155.40.) Here, the use of the language 'extortion committed by instilling in the victim a fear (of injury to person or property)' implies that the legislative intent was that these two methods of extortion be treated as class C felonies, and that the other methods of extortion be treated as the lower class E felony. The Practice Commentary confirms this: 'In meshing extortion with larceny, the Revised (present) Penal Law also predicates two degrees of extortion, or larceny by extortion * * * The basic, all-inclusive lower offense constitutes grand larceny in the third degree, a class E felony (§ 155.30(5) (now 6)). The instant section raises the crime to the first degree, a class C felony, when committed by means of certain of the more heinous kinds of threats or intimidation listed in the definitional statute as bases for larceny by extortion (§ 155.05(2e)): namely threatened physical injury, threatened property damage and threatened use or abuse of public office.' (Denzer and McQuillan, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 155.40.)

Similarly, 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.

In analogous circumstances, we have consistently held that overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution. Unless there is evidence of legislative intent to the contrary (see, e.g., People v. Knatt, 156 N.Y. 302, 50 N.E. 835), the existence of a specific statute prohibiting the conduct involved, does not prevent prosecution under a more general statute. (People v. Bergerson, 17 N.Y.2d 398, 401, 271 N.Y.S.2d 236, 237, 218 N.E.2d 288, 289; People v. Hines, 284 N.Y. 93, 105, 29 N.E.2d 483, 491.) The same result follows even where the overlap is inherent in the definitions of two offenses. In People v. Lubow, 29 N.Y.2d 58, 67, 323 N.Y.S.2d 829, 834, 272 N.E.2d 331, 335, it was recognized that the statutory definition of solicitation as a misdemeanor (Penal Law, § 100.05), embraced the elements of the lesser degree, solicitation as a 'violation' (Penal Law, § 100.00), and consequently, whenever the higher degree of solicitation was committed, so was the lower. Despite this inherent duplication, and the concomitant opportunity for choice by the District Attorney, prosecution for the higher crime was held permissible (29 N.Y.2d, at p. 67, 323 N.Y.S.2d 829, 272 N.E.2d 483; see People v. Bord, 243 N.Y. 595, 154 N.E. 620).

Appellants argue that these prior holdings are distinguishable. In the cases cited, while the specific conduct involved constituted more than one crime, the elements necessary to make out the different crimes were not identical. For example, the solicitation statutes considered in Lubow provided that solicitation of any Crime constituted the lower offense, while the higher offense required solicitation of a Felony. As in most statutes creating degrees, the more serious crime is created by the addition of one or more elements to the lesser offense. With regard to the coercion statutes, appellants emphasize that the two degrees are 'defined in precisely the same language' and argue that as a result, 'they are not different crimes but one and the same crime for which the legislature has provided different punishment.'

This distinction is more apparent than real. As we noted above, read in light of the Commentaries and the related extortion statutes it seems clear that despite the identity in language, there is a guideline differentiating felony and misdemeanor coercion--in general, the misdemeanor is to be charged where the...