People v. Ford
| Decision Date | 08 December 1977 |
| Citation | 60 A.D.2d 40,400 N.Y.S.2d 35 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Wilford FORD, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Roger CWIKLA, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Henry Winestine, New York City, of counsel (William J. Gallagher and William E. Hellerstein, New York City), for defendant-appellant Roger Cwikla.
Eleanor Jackson Piel, New York City, for defendant-appellant Wilfred Ford.
Allen H. Saperstein, New York City, of counsel (Mario Merola, Dist. Atty.), for respondent.
Before BIRNS, J. P., and LANE, MARKEWICH and LYNCH, JJ.
Defendants were indicted for the crimes of felony murder, common law murder, possession of a dangerous instrument as a misdemeanor and two counts of burglary in the first degree (Penal Law, § 140.30, subds. 2 and 3).
They were convicted, after a jury trial, of possession of a dangerous instrument as a misdemeanor and burglary in the first degree (Penal Law, § 140.30, subd. 3) and acquitted of the other charges.
Each defendant was sentenced May 30, 1975 on the convictions to an unconditional discharge on the possession count and 7 to 21 years on the burglary count. Both defendants are presently incarcerated.
Defendant Cwikla previously was tried alone (before Gomez, J. and a jury) on the charges under the indictment and found guilty of felony murder, manslaughter in the second degree, possession of a dangerous instrument as a misdemeanor, and both counts of burglary in the first degree. On appeal therefrom, his convictions were reversed and a new trial ordered because of prosecutorial misconduct and errors committed by the court (People v. Cwikla, 45 A.D.2d 584, 360 N.Y.S.2d 33). Subsequently, codefendant Ford was apprehended and a joint trial was held, eventuating in the convictions herein appealed.
Essentially, the prosecution's theory was that on January 5, 1972 defendants, together with one Thomas Cox, burglarized the apartment of Martin Kubanik located at 356 St. Ann's Avenue, Bronx, that in the course of the burglary Mr. Kubanik was tied with a rope and gagged with a handkerchief stuffed into his mouth, and that as a result he died of asphyxiation. Thomas Cox, having pleaded guilty to manslaughter in the first degree, testified for the People.
Defendants raise various points on this appeal, only three of which require discussion.
They urge that there is no evidence to support their conviction for possession of a dangerous instrument and that, accordingly, their conviction for burglary in the first degree under subdivision 3 of section 140.30 of the Penal Law which provides that a person is guilty of burglary in the first degree where (all other elements of burglary being satisfied) he "(u)ses or threatens the immediate use of a dangerous instrument" must also fall. They assert that a mere handkerchief cannot be construed as a dangerous instrument.
We conclude, however, that a handkerchief may be considered a dangerous instrument. Defendants were found guilty of possession of a dangerous instrument as a misdemeanor pursuant to subdivision 9 of section 265.05 of the Penal Law which in pertinent part proscribes "possession (of) any . . . dangerous . . . instrument . . . with intent to use the same unlawfully against another . . .." Subdivision 13 of section 10.00 of the Penal Law, in turn, defines a "dangerous instrument" as "any instrument, article or substance . . . which, under the circumstances in which it is used . . . is readily capable of causing death or other serious physical injury." (Emphasis added.) An article not designed as a weapon may ordinarily have a perfectly legitimate function but in terms of temporary use may fit the definition of a "dangerous instrument" (Practice Commentaries by Arnold D. Hechtman, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 10.00, p. 21).
Defendants contend, further, that a handkerchief is not a "dangerous instrument" because it is not "readily capable of causing death or other serious physical injury" (emphasis added), since the victim must first be otherwise restrained in order for the handkerchief to inflict death or other serious physical injury. Moreover, they urge, it is clear from the evidence that the gagging of Mr. Kubanik was to avoid injury, not to kill or injure him. They claim, further, that if the statute is construed to include a handkerchief, it would be void for vagueness since "(n)o one would be able to determine what homely belongings might turn out to be dangerous instruments." Finally, they claim that the statute cannot be extended to make criminal the possession of objects only remotely related to those proscribed by the Legislature.
We are of the opinion that the evidence was sufficient to justify the finding that the handkerchief was a dangerous instrument, and further, that the statute as so interpreted, is not void for vagueness.
Because the essence of "dangerous instrument" is the manner in which the item is used, and inasmuch as the definition refers to any instrument, article or substance, even ordinary items are included within its scope whenever they are "readily capable of causing death or other serious physical injury". Here a 74 year old man was left bound around his wrists and feet, and was gagged. The gag was found partially inserted in the victim's mouth and tied by two knots in the back of his neck. As such, it could be anticipated that under the circumstances, the gag could cause death or other serious physical injury to the victim, or at least the jury could so find. And, further, interpreting the statute in such a manner does not make it overly broad or vague, for what is proscribed is not the possession of an ordinary object under ordinary circumstances but possession of such object under circumstances in which it is readily capable of causing death or other serious physical injury.
Defendant Ford, in a related point, urges that the finding that defendants did not cause the death of Mr. Kubanik (i. e., the acquittal of felony murder) or did not cause him physical injury in the commission of the burglary (i. e., acquittal of burglary in the first degree under Penal Law, § 140.30(2)) is repugnant to the finding that the handkerchief was a dangerous instrument (on which the guilty verdicts of possession of a dangerous instrument and burglary in the first degree under Penal Law § 140.30(3) were predicated) and indicates the jury's disbelief of Cox's version of the circumstances of the crime, namely, how Mr. Kubanik was tied and the handkerchief used.
This argument lacks merit. Inconsistency in a verdict, even if that were the case here, does not invalidate it, since each count is treated separately. (People v. Pugh, 36 A.D.2d 845, 321 N.Y.S.2d 504, affd. 29 N.Y.2d 909, 328 N.Y.S.2d 860, 279 N.E.2d 604, cert. den. 406 U.S. 921, 92 S.Ct. 1777, 32 L.Ed.2d 120.) Only repugnance in a verdict will invalidate it, and repugnance can only occur where the crimes contain identical elements (People v. Pugh, supra ).
Here, the elements of the crimes for which defendants were acquitted were not identical to those involved in the crimes for which they were convicted. The dangerous instrument count merely required a finding that the article, under the circumstances used, was "readily capable of causing death or other serious physical injury" and not that it did, in fact, cause death or physical injury. Hence the jury could have found that defendants did not cause the victim's death, albeit a dangerous instrument was used.
We now consider defendant Cwikla's assertion that he was denied due process when he received a more severe sentence after retrial than on the first trial.
Upon the first trial, after conviction, Cwikla was sentenced to a life term with a minimum of 15 years for the crime of felony murder, an indeterminate term not to exceed 15 years for the crime of manslaughter in the second degree, an indeterminate term not to exceed 15 years on each of the two crimes of burglary in the first degree, all to be served concurrently, and an unconditional discharge for the crime of possession of a dangerous instrument as a misdemeanor.
Following reversal by this court of the original convictions and upon the new trial ordered, Cwikla could only be sentenced on possession of a dangerous instrument as a misdemeanor and one count of burglary in the first degree, inasmuch as the jury acquitted him and his codefendant Ford of all other charges.
It was within this framework of a reduced number of convictions that the trial court at the second trial considered it legally appropriate to sentence Cwikla to a term of 7 to 21 years on the burglary charge.
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the Supreme Court formulated a rule designed to eliminate the possibility of judicial vindictiveness in sentence at a second trial after a defendant's successful appeal from his conviction at a first trial. It defined the issue as involving "the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon re-trial." (395 U.S. at p. 711, 89 S.Ct. at p. 2075.) The Supreme Court said that a longer sentence on retrial did not violate double jeopardy, or due process where the Trial Judge imposed a greater sentence after retrial based on "events subsequent to the first trial" (395 U.S. at p. 723, 89 S.Ct. at p. 2079) but cautioned that
. . . whenever a judge imposes a more severe sentence upon a defendant after a new trial the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. (395 U.S. at p. 726, 89 S.Ct. at p. 2081.) (Emphasis added.)
Therefore, to accept as valid a more severe sentence, the reasons for such...
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