People v. Irby

• Decision Date: 09 June 2016
• Citation: 2016 N.Y. Slip Op. 04469,33 N.Y.S.3d 530,140 A.D.3d 1319
• Parties: The PEOPLE of the State of New York, Respondent, v. John IRBY, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1319
33 N.Y.S.3d 530
2016 N.Y. Slip Op. 04469

The PEOPLE of the State of New York, Respondent,
v.
John IRBY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 9, 2016.

33 N.Y.S.3d 531

Sandra M. Colatosti, Albany, for appellant.

James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

33 N.Y.S.3d 532

EGAN JR., J.

140 A.D.3d 1319

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 3, 2014, upon a verdict convicting defendant of the crimes of reckless endangerment in the second degree, unlawful imprisonment in the first degree, assault in the third degree, reckless driving and endangering the welfare of a child (two counts) and the traffic infraction of failure to stop at a stop sign (three counts).

In June 2013, defendant, the victim and their two children were residing in the Village of Ravena, Albany County, and the victim was five months pregnant with their third child. On June 25, 2013, the victim, who was visiting her family in Swan Lake, Sullivan County, had a telephone conversation with defendant, who was in Albany County, at which time defendant expressed his desire that the victim and the children return home. When the victim indicated that she was not yet ready to return, defendant told her to come back or they were breaking up. The victim surmised that her refusal would trigger defendant's travel to Sullivan County and, at some point after 2:00 p.m. that day, defendant arrived at the place of business of the

140 A.D.3d 1320

victim's family—purportedly to take the victim and the children to get ice cream.

Shortly after the victim and the children got into the couple's vehicle and defendant drove away, an argument broke out, during the course of which defendant struck the victim, who was riding in the front passenger seat, in the face. As the argument escalated, the victim jumped out of the window of the moving vehicle and attempted to flee. Defendant stopped the car, ran after the victim, grabbed her and returned her to the vehicle, during the course of which the victim lost her shirt, bra and shoes. Defendant thereafter drove around the countryside—often at a high rate of speed and running various stop signs—until he was apprehended by law enforcement. Portions of this incident and the ensuing chase were witnessed by a bystander and certain members of the victim's family, the latter of whom had followed defendant's vehicle—fearing for the victim's safety.

As a result of this incident, defendant was charged in an 11–count indictment with reckless endangerment in the first degree, unlawful imprisonment in the first degree, assault in the third degree, reckless driving, endangering the welfare of a child (two counts) and failure to stop at a stop sign (five counts). Following a jury trial, defendant was found guilty of reckless endangerment in the second degree (as a lesser included offense), unlawful imprisonment in the first degree, assault in the third degree, reckless driving, endangering the welfare of a child (two counts) and failure to stop at a stop sign (three counts). Defendant was sentenced, as a second felony offender, to a prison term of 2 to 4 years upon his unlawful imprisonment conviction and received a conditional discharge as to the remaining offenses. This appeal ensued.

Defendant initially contends that his convictions of unlawful imprisonment in the first degree and assault in the third degree are against the weight of the evidence. We disagree. “A person is guilty of unlawful imprisonment in the first degree when he [or she] restrains another person under circumstances which expose the latter to a risk of serious physical injury” (Penal Law § 135.10 ). Insofar as is relevant here, the restraint element “means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] either in the place where the restriction commences or in a place to

33 N.Y.S.3d 533

which he [or she] has been moved, without consent and with knowledge that the restriction is unlawful” (Penal Law § 135.00[1] ; see

140 A.D.3d 1321

People v. Lotmore, 276 A.D.2d 901, 901–902, 715 N.Y.S.2d 94 [2000], lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 803, 745 N.E.2d 1026 [2001] ). “[O]ne is deemed to have been moved ‘without consent’ when that movement is accomplished by, as relevant here, physical force or intimidation” (People v. Lotmore, 276 A.D.2d at 902, 715 N.Y.S.2d 94, quoting Penal Law § 135.00[1] ). As Penal Law § 135.10 makes clear, actual serious physical injury need not occur; rather, “ [f]irst-degree unlawful imprisonment only requires that the circumstances expose the restrained person to a risk, of unspecified degree, of serious physical injury” (People v. Cespedes, 122 A.D.3d 417, 418, 994 N.Y.S.2d 347 [2014], lv. denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] [internal quotation marks omitted] ).

Here, the unlawful imprisonment count pertained to defendant's conduct following the victim's initial escape from the moving motor vehicle—specifically, defendant's actions in pursuing and grabbing the victim, forcing her back into the vehicle and thereafter traveling at a high rate of speed along an “unmarked road”—meaning that there were no fog lines or centerline markings—with “a lot of curves,” “a lot of blind spots,” “limited sight distance[s]” and a posted speed limit of 30 miles per hour, all the while passing through “an area with lots of homes and bungalow colonies.” To that end, the People offered the testimony of a witness who was gardening near the intersection of Stanton Corners Road and Old White Lake Turnpike in the Town of Liberty, Sullivan County when she observed a car speeding down the road and the victim¹ “hanging out the window” screaming “help me.” As the car “veered off” of the road, the victim “jumped out the window” and the witness yelled for the victim to run toward her. As the witness was placing a call to the police, she observed a man, whom she later identified as defendant, exit the vehicle, run toward the victim and “grab her,” at which point he “dragged her back to...