People v. Levy

• Decision Date: 04 February 1965
• Parties: , 204 N.E.2d 842 The PEOPLE of the State of New York, Respondent, v. David M. LEVY, Patrick Maloney and Louis D'Antonio, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 793

256 N.Y.S.2d 793

15 N.Y.2d 159, 204 N.E.2d 842

The PEOPLE of the State of New York, Respondent, v. David M. LEVY, Patrick Maloney and Louis D'Antonio, Appellants.

Court of Appeals of New York.

Feb. 4, 1965.

James B. Kilsheimer, III, and Samuel Lawrence Brennglass, New York City, for David M. Levy, appellant.

J. Kevin Meneilly, New York City, for Patrick Maloney, appellant.

Edward J. Bloustein, New York City, for Louis D'Antonio, appellant.

Frank S. Hogan, Dist. Atty. (Raymond S. Hack and H. Richard Uviller, New York City, of counsel), for respondent.

BERGAN, Judge.

In the early morning of December 31, 1961, Mr. and Mrs. John Mosler, stopping their car in front of 1035 Fifth Avenue where they lived, were accosted by two armed men who at gunpoint entered the car, one of them taking over the control of the car and the other getting in back.

On the trial it was established that John Richlia, who was a People's witness, was the driver of the car and defendant D'Antonio was the other active participant; there is no proof also that defendants Levy and Maloney planned the crime in concert with the actual perpetrators.

Richlia drove the car north on Fifth Avenue to 88th Street, then east to Park Avenue, then south on Park Avenue to 81st Street, then west to Fifth Avenue, then north past the Mosler house and again east on 88th Street to First Avenue where the robbers got out of the car. The total length of the drive was 27 city blocks; the time 20 minutes.

While this trip was under way, earrings and two finger rings were taken from Mrs. Mosler. The earrings were taken while the car was going the first time north on Fifth Avenue and the finger rings while it was turning into 88th Street. The robbery seems to have continued, as far as Mrs. Mosler was concerned, at least, in trying to find other jewelry on her person until after the car made its second turn into 88th Street.

At a later point, but at a time not clearly described, Mr. Mosler was robbed of $300 in cash. It is evident, however, that the taking of Mr. Mosler's money was after Mrs. Mosler's jewelry had been taken, and it seems a fair inference from his description of the sequence of events that it was while the car was approaching First Avenue on the second trip eastward on 88th Street.

The attempt to get more jewels from Mrs. Mosler thus continued into the second movement east in 88th Street and the sequence of narration suggests that Mr. Mosler was robbed while the car was proceeding between Fifth and First Avenues. This was, according to the narrative of Mr. Mosler, 'Prior to reaching' the corner of '88th Street and First Avenue'. His narrative continued: 'Let me see if I can remember the exact point * * * I don't know the exact time or not, but at a point in the route of the car, the trip of the car, I had a ring of sentimental value, and a watch of sentimental value, which I didn't want to give to the gunmen, if possible. I, however, reached into my pocket and I withdrew my wallet and I handed it to him and said, 'Here's my wallet,' and he took my wallet.'

These three defendants were each convicted of two counts of kidnapping, of two counts of robbery first degree and of criminally possessing a pistol. On the kidnapping charges each was sentenced to 20 years to life; for the robbery, Levy was sentenced to 15 to 30 years; D'Antonio, 15 to 25 years; and Maloney from 10 to 11 years; for the gun charges all received suspended sentences. The prison sentences run concurrently. The Appellate Division unanimously affirmed the judgments.

Kidnapping is, by contemporary statutory standards, one of the most serious of crimes. In our era this crime has assumed particularly reprehensible forms. It may under some circumstances be punishable by death (Penal Law, Consol.Laws, c. 40, § 1250, subd. A, par. 3, as amd. by L.1963, ch. 994, § 3). The minimum penal sentence is 20 years to life, as compared with rape in the first degree which entails a maximum punishment of 20 years (Penal Law, § 2010, subd. 5) and robbery first degree which entails a maximum punishment of 30 years (Penal Law, § 2125).

In basic concept the crime of kidnapping envisages the asportation of a person under restraint and compulsion. Usually the complete control of the person and the secrecy of his location are means of facilitating extortion. But since the control may be accomplished in a variety of ways, the New York statute has been drafted in very broad terms. Much of the definition related to traditional forms of kidnapping, but literally embraced in its terms any restraint. It provided, e. g., that one who 'confines' another with intent to 'cause him * * * to be confined' against his will is guilty of kidnapping (Penal Law, § 1250, former subd. 1).

This definition could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and somtimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.

It is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words.

The problem in relation to rape and assault was considered by the court in People v. Florio, 301 N.Y. 46, 92 N.E.2d 881. A girl was enticed into an automobile and forcibly detained and driven from Manhattan to an isolated place in Queens where she was raped. Convictions for kidnapping as well as for rape and assault were sustained.

We now overrule People v. Florio (supra) to limit the application of the kidnapping statute to 'kidnapping' in the conventional sense in which that term has now come to have acquired meaning. There may well be situations in which actual kidnapping in this sense can be established in conjunction with other crimes where there has been a confinement or restraint amounting to kidnapping to consummate the other crime. But the case now before us is essentially robbery and not kidnapping.

The precise situation in which both kidnapping and other crimes such as robbery or rape are sustainable together is reserved until an appropriate case arises. People v. Black, 18 A.D.2d 719, 236 N.Y.S.2d 240 is an illustration of separately established crimes of robbery and kidnapping. One of the victims of the robbery was taken along as a hostage to another State and held for a considerable time, long after the robbery had been completed.

In the case before us the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of a victim in a bank and his movement into another room. In essence the crime remained a robbery although some of the kidnapping statutory...