People v. Ehinger

• Decision Date: 21 November 1989
• Citation: 152 A.D.2d 97,547 N.Y.S.2d 302
• Parties: The PEOPLE of the State of New York, Respondent, v. Herbert EHINGER, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Suzanne MAREL a/k/a Suzanne Marial, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 302

547 N.Y.S.2d 302

152 A.D.2d 97

The PEOPLE of the State of New York, Respondent, v. Herbert EHINGER, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Suzanne MAREL a/k/a Suzanne Marial, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 21, 1989.

Laurie Sapakoff, of counsel (James M. McGuire with her on the brief; Robert M. Morgenthau, New York City, attorney) for respondent.

Robert C. Dorf, of counsel (Dorf & Perlmutter, New York City, attorneys) for defendant-appellant Ehinger.

Trevor Headley, Brooklyn, attorney for defendant-appellant Marel.

Before MURPHY, P.J., and KUPFERMAN, KASSAL, WALLACH and SMITH, JJ.

WALLACH, Justice.

In June 1987 the 27 year-old male victim in this case, Hirokai Murai, placed an ad for a roommate in the Village Voice. Shortly thereafter, after responding to the ad, defendants moved into Murai's East 19th Street apartment in the Borough of Manhattan and together occupied the living room as their sleeping quarters. The July rent check tendered by defendant Ehinger bounced. An argument over this problem developed, which ended in the bloody beating of Murai by Ehinger and Murai being handcuffed and bound with electric cord. For the next five days defendants made Murai a prisoner in his own home and inflicted continuous and outrageous cruelties upon him consisting, among other things, of physical abuse, starvation, humiliation of their captive in the course of his bodily functions, hair burning, and an attempt to rotate a knife inside the victim's rectum. The object of this sadistic terrorism was to extort money from Murai by coercing him to reveal the secret access code on his Citibank card. The program of savage intimidation succeeded when Murai at last disclosed the code, and defendants promptly stole over $4,000 from Murai's bank account. Defendants also looted a substantial portion of Murai's personal property by removing it to a hotel room where Marel had registered.

Following a jury trial, defendants were convicted of the crime of kidnapping in the first degree under the following pertinent sections of the statute (Penal Law § 135.25).

"A person is guilty of kidnapping in the first degree when he abducts another person and when: ...

2. He restrains the person abducted for a period of more than twelve hours with intent to: ...

(b) Accomplish or advance the commission of a felony;

..."

Penal Law § 135.00(2) as pertinent here defines abduct as follows:

"Abduct" means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, ....

On this appeal defendants contend that their kidnapping convictions should be vacated because this statutory reference to a place where the victim "is not likely to be found" is either constitutionally void for vagueness or, in the alternative, that Murai's apartment falls outside the statutory definition as a matter of law. Defendants never raised these claims either by motion addressed to the indictment or any objection made to the trial court, and therefore they have not been preserved for appellate review (People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383, cert. den., 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673). Because an alleged error is assertedly of constitutional dimension does not create an exception to this rule (see, People v. Thomas, 50 N.Y.2d 467, 473, 429 N.Y.S.2d 584, 407 N.E.2d 430).

Nor do we find this statutory language impermissibly vague. In People v. Nelson, 69 N.Y.2d 302, 514 N.Y.S.2d 197, 506 N.E.2d 907, the Court of Appeals was confronted with the argument that Penal Law § 165.25, the statute defining the crime of "jostling," as committed "when, in a public place, he [defendant] intentionally and unnecessarily (1) Places his hand in the proximity of a person's pocket or handbag ...". The statutory reference to "unnecessarily" was urged by defendant as having incorporated an unconstitutionally vague standard into the statute. The court held that "unnecessarily" gave sufficient notice of the proscribed conduct, and further observed

It has often been said, however, that, except in rare circumstances not relevant here, a vagueness challenge must be addressed to the facts before the court [citations omitted]. Thus, if the actions of the defendants are plainly within the ambit of the statute, the court will not strain to imagine marginal situations in which the application of the statute is not so clear [citations omitted]. (at p. 308, 514 N.Y.S.2d 197, 506 N.E.2d 907)

The same considerations apply to the facts before us in this case, since the proscribed conduct, in order to constitute the crime, must be coupled with restraint of the victim for over a 12 hour period. As was stated in Quintard Associates Ltd. v. New York State Liquor Authority, 57 A.D.2d 462, 465, 394 N.Y.S.2d 960, app. dism. 42 N.Y.2d 973, 398 N.Y.S.2d 1035, 367 N.E.2d 878: "The void-for-vagueness doctrine embodies a 'rough idea of fairness' ( Colten v. Kentucky, 407 US 104, 110 [92 S.Ct. 1953, 1957, 32 L.Ed.2d 584) ] and the most common standard by which the sufficiency of statute is measured when attacked for...