People v. Greer

• Decision Date: 07 July 1977
• Citation: 42 N.Y.2d 170,397 N.Y.S.2d 613,366 N.E.2d 273
• Parties: , 366 N.E.2d 273 The PEOPLE of the State of New York, Appellant, v. Philip GREER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 613

397 N.Y.S.2d 613

42 N.Y.2d 170, 366 N.E.2d 273

The PEOPLE of the State of New York, Appellant, v. Philip GREER, Respondent.

Court of Appeals of New York.

July 7, 1977.

Edward C. Cosgrove, Dist. Atty. (John J. DeFranks, Buffalo, of counsel), for appellant.

Rosalie M. Stoll and Nathaniel A. Barrell, Buffalo, for respondent.

COOKE, Judge.

Shortly after one thirty on the morning of July 26, 1974 complainant drove her car to a point in front of her Buffalo apartment where she fell asleep behind the wheel. She testified as to having previously consumed five or six drinks. An hour or so later she was awakened by defendant Greer who inquired if she was all right or needed help. When defendant stated he was going to South Park and was walking, complainant offered a ride. At first he drove and, when he pulled in a driveway and got out of the vehicle, she moved to the driver's side. Upon his re-entry into the car, she followed his directions and after a while realized they were just going in circles and not going any place. He asked her to stop the car. She was scared. It was in a nonresidential area near a warehouse. He put the car in parking gear and started to get out and, when she placed it in drive, he got back in, put it in park and took the keys. He started out again and, when she tried to lock the door, he grabbed it and got back in the car. When she beeped the horn, he grabbed her arm, twisted it and dragged her from the car. When she screamed, he told her not to make him mad. He had his hand on her mouth, put it on her throat and repeated his admonition not to make him mad. She was dragged 40 to 50 feet to a truck-docking area where she was pushed to the ground. She talked to him and, when she asked him about God, he said he was Mosely whom she knew was connected with rape and murder. Defendant then pulled off her shorts and had intercourse with her.

The complainant testified that during the ordeal she was afraid for her life and that all she thought about was dying. Seeing lights, she called for help and a police officer came to the scene. Buffalo Police Lieutenant Vaccaro testified: that while on a routine patrol he saw an automobile in the middle of Indiana Street in an industrial and vacant lot area; that the door on the passenger side was open with a woman's sandal in the street near the open door, another in the car and a woman's purse 30 or 40 feet down the street; that he heard a woman calling for help and, in turning his flashlight, saw a man on the ground against a loading platform with his trousers down around his ankles; that as defendant arose complainant was seen beneath him with no clothing from the waist down; that when Vaccaro with gun in hand asked, "What's going on here?", defendant replied, "this is my woman"; that the officer asked her name and Greer said, "I don't know"; and it was observed that the woman was crying, her face was mud or tear-streaked and she was covered with dirt.

Defendant presented a different testimonial version. He took the stand and related: that he was 21 years of age, five feet 1 01/2 inches tall and weighed 238 pounds; that about 3 o'clock in the morning of the day in question he noticed a woman whom he knew as Annie in an automobile on Elmwood Avenue; that complainant said she was waiting for someone and asked defendant to get in the car; that after talking a bit he asked her to drive him home to which she agreed; that at first he drove and then, after stopping to allow him to go to a friend's house on Ferry Street, she drove, proceeding in time on Main Street past two police stations; that eventually they went up Indiana Street where she stopped the car; that she talked about her boyfriend with whom she had had an argument; that he left the car to void and upon returning found complainant standing outside the vehicle; that they talked and kissed and walked over to a truckloading area where he put his jacket on the ground; that they were having intercourse on the jacket when the police arrived; that he told the police he knew the girl, that her name was Annie and that he did not know her name was Jeanne until charges were preferred; that he seen her on three prior occasions, on two of which he had had relations with her; and that he never told her his name was Mosely.

Based on this proof, a jury found defendant guilty of rape in the first degree, for which crime he had been indicted. The Appellate Division in turn unanimously reversed the conviction and granted a new trial because of errors it found. That court was in disagreement, however, as to whether coercion in the second degree should have been charged as a lesser included crime, the majority being of the opinion that the trial court's refusal to so charge constituted reversible error.

By statute, "(i)n submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50, subd. 1). A "lesser included offense" is defined in this fashion: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense' " (CPL 1.20, subd. 37). Thus, before a jury is charged concerning a lesser included offense, two criteria must exist: (1) the offense being scrutinized for possible submission must meet the said statutory definition of a "lesser included offense," and (2) there must be a reasonable view of the evidence which would support a finding that defendant committed the lesser offense but not the greater (People v. Johnson, 39 N.Y.2d 364, 367, 384 N.Y.S.2d 108, 109, 348 N.E.2d 564, 565).

For our discussion, "(a) male is guilty of rape in the first degree when he engages in sexual intercourse with a female: 1. By forcible compulsion" (Penal Law, § 130.35, subd. 1). Rape in the first degree is a class B felony. "Forcible compulsion" means "physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of (1) immediate death or (2) serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped" (Penal Law, § 130.00, subd. 8; emphasis added). On the other hand, so far as pertinent, a person is guilty of the class A misdemeanor 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 * * * 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" (Penal Law, § 135.60, subd. 1; emphasis added).

Here, the prosecution presented evidence of forcible compulsion under two theories. The first was under the category of physical force by proof of acts such as taking the car keys, twisting her arm, putting his hand on her mouth and throat, dragging her 40 or 50 feet, pushing her to the ground and pulling off her shorts. The second was that the victim's resistance was overcome by a threat or threats which placed her in fear of immediate death. Under the first theory, where the forcible compulsion consists of physical force which overcomes earnest resistance, it is not essential that the victim be placed in fear of any sort of harm in order that the charge of rape in the first degree be sustained. In such instance, coercion would not be a lesser included offense of rape in the first degree, so structured on a basis of physical force. It is not impossible to commit the crime of rape in the first degree, based upon physical force overcoming earnest resistance, without concomitantly committing, by the same conduct, the crime of coercion in the second degree (see CPL 1.20, subd. 37).

As to the prosecution's second theory of forcible rape, that the intercourse was compelled by a threat which placed the victim in fear of death, the only proof introduced regarding the victim's state of mind, other than defendant's version of consent, was that defendant stated to her that he was Mosely, a person she knew to be connected with rape and murder, as well as her testimony that she was afraid for her life and that all she thought about was dying. Upon this proof it was not a question of "serious physical injury" as opposed to "physical injury." We need go no further here than to hold that there was no reasonable view of the evidence, in respect to the fear the victim was suffering, which would support a finding that defendant committed coercion in the second degree but not rape in the first degree.

Defendant contends that certain prejudicial errors were committed during his cross-examination. He was asked whether he and three others "jumped" a fellow named Dantonio and beat him up when he refused to give them money, to which he replied in the negative. At a conference between the trial court and counsel, attended by defendant, the Assistant District Attorney revealed a series of questions he intended to put to defendant when cross-examination resumed. Defense attorney's request for a "full hearing" to determine whether the questions would be prejudicial was not granted. Upon returning to the stand, defendant again denied the Dantonio attempted robbery, posed in a somewhat different question. He denied possession at a certain address of a concealed and dangerous...