People v. Fullan

• Citation: 685 N.Y.S.2d 901,708 N.E.2d 974,92 N.Y.2d 690
• Parties: , 708 N.E.2d 974, 1999 N.Y. Slip Op. 1449 The PEOPLE of the State of New York, Appellant-Respondent, v. Daniel FULLAN, Respondent-Appellant.
• Decision Date: 18 February 1999
• Court: New York Court of Appeals Court of Appeals

Page 901

685 N.Y.S.2d 901

92 N.Y.2d 690, 708 N.E.2d 974, 1999

N.Y. Slip Op. 1449

The PEOPLE of the State of New York, Appellant-Respondent, v. Daniel FULLAN, Respondent-Appellant.

Court of Appeals of New York.

Feb. 18, 1999.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Ellen C. Abbot, John M. Castellano and Robin A. Forshaw of counsel), for appellant-respondent.

Ruden, McClosky, Smith, Schuster & Russell, P.A. (Marc S. Nurik, of the Florida Bar, admitted pro hac vice, of counsel), for respondent-appellant.

OPINION OF THE COURT

BELLACOSA, J.

The dispositive issue is whether attempted kidnapping in the first degree is a cognizable crime in the circumstances of this case under the governing statutes and precedents (Penal Law § 135.25[3]; § 110.00; People v. Miller, 87 N.Y.2d 211, 638 N.Y.S.2d 577, 661 N.E.2d 1358 [1995]; cf., People v. Campbell, 72 N.Y.2d 602, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ). The Appellate Division held, as a matter of law, that the crime was not cognizable, citing only Campbell. A Judge of this Court granted leave to appeal to the People, and to the defendant on a discrete issue that ultimately is subsumed in the decision on the People's appeal.

We conclude that the conviction for attempted kidnapping in the first degree qualifies as a cognizable offense in this case. Therefore, the order of the Appellate Division should be modified by reinstating defendant's conviction in relation to the affected charges; as so modified, the order should be affirmed; and the matter should now be remitted to the Appellate Division for the discrete consideration of the facts on the reinstated counts (CPL 470.25[2][d]; 470.40[2][b] ).

Defendant Fullan hired Cepeda and Esquilin to abduct Alpert, a business associate of Fullan's. Alpert held promissory notes representing a $150,000 obligation owed by Fullan to Alpert. The plot called for Cepeda and Esquilin to kidnap Alpert, take him to a specified location, and kill him. When they tried to abduct him and force him at gunpoint into a large refrigerator, Alpert struggled and the culprits' gun fired, hitting Alpert. Esquilin then shot Alpert twice more, a coup de grace that killed Alpert. Fullan, who was present throughout, then took the promissory notes from Alpert's body.

Fullan was tried with Esquilin Each was convicted of three counts of murder in the second degree, comprised of one count of intentional murder (Penal Law § 125.25[1] ) and two counts of felony murder (Penal Law § 125.25[3] ), the underlying felonies being attempted kidnapping in the first degree and robbery in the first degree. Guilty verdicts were also returned for attempted kidnapping in the first degree (Penal Law § 135.25[3]; § 110.00), and robbery in the first degree (Penal Law § 160.15).

Codefendant Esquilin appealed first and separately in 1990. The Appellate Division relying on People v. Campbell, 72 N.Y.2d 602, 535 N.Y.S.2d 580, 532 N.E.2d 86, supra, modified his judgment of conviction by reversing the counts for attempted kidnapping in the first degree and for the felony murder charge predicated on attempted kidnapping in the first degree. The court dismissed these counts of the indictment against him as a matter of law (People v. Esquilin, 159 A.D.2d 632, 552 N.Y.S.2d 953, lv. denied 76 N.Y.2d 734, 558 N.Y.S.2d 896, 557 N.E.2d 1192 [1990] ).

After the Appellate Division decision in Esquilin's case, but prior to Fullan's intermediate appellate court review, this Court decided People v. Miller, 87 N.Y.2d 211, 638 N.Y.S.2d 577, 661 N.E.2d 1358, supra, which on refined analysis, distinguished Campbell (supra ). We held in Miller that attempted robbery in the first degree (Penal Law §§ 160.15, 110.00) is a legally cognizable crime in circumstances similar to those presented here. The Appellate Division in the instant case, without mentioning Miller, nevertheless gave defendant Fullan the same relief, as a matter of law, that it had granted his codefendant Esquilin seven years earlier (237 A.D.2d 619, 655 N.Y.S.2d 644 [1997] ).

As primary appellant now before this Court, the People argue that, under Miller's reasoning, attempted kidnapping in the first degree is a legally sustainable and cognizable crime. On the cross appeal, defendant Fullan not only presses that the Appellate Division correctly determined what we view as the Miller issue, but also that the trial court committed reversible error when it instructed the jury on the "nonexistent" crime of attempted kidnapping in the first degree. In this respect, Fullan seeks from this Court greater relief than he received from the Appellate Division. He now wants an order directing a new trial on the remaining counts.

We address the People's main appeal first. In Miller, this Court reasoned that the essence of the crime of robbery is forcible stealing, and that the commission of that core crime may be elevated in degree by aggravating circumstances which reflect or render probable a greater degree of harm flowing from commission of the core crime (see, Penal Law §§ 160.05, 160.10, 160.15). The forbidden result is the robbery, and the culpable mental state is tied to that core crime; strict liability attaches only to the aggravating circumstances (see, People v. Miller, supra, at 216-218, 638 N.Y.S.2d 577, 661 N.E.2d...