People v. Perry

• Decision Date: 23 March 1992
• Parties: The PEOPLE, etc., Respondent, v. James PERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 390

581 N.Y.S.2d 390

181 A.D.2d 833

The PEOPLE, etc., Respondent, v. James PERRY, Appellant.

Supreme Court, Appellate Division Second Department.

March 23, 1992.

Philip L. Weinstein, New York City (Susan J. Feathers and Richard Joselson, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Anna Seminerio and Elizabeth Fox, of counsel), for respondent.

Before ROSENBLATT, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered May 15, 1990, convicting him of assault in the second degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by (1) reversing the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) reducing the conviction of unlawful imprisonment in the first degree to unlawful imprisonment in the second degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

The defendant was convicted of assault in the second degree and unlawful imprisonment in the first degree, stemming from an incident which occurred in the early morning hours of May 11, 1989. The complainant testified that the defendant approached her while she was trying to place a telephone call at a public telephone at approximately 3:30 A.M. of that day. He then allegedly asked her, "What's up, do you want to hang out?" The complainant allegedly responded "No", and started walking away. The defendant allegedly grabbed the complainant's arm and said, "Let's take a walk". The complainant said she became scared and walked with the defendant to his apartment which was across the street. While in the apartment, the defendant allegedly used a threatening voice in asking her to take off her clothes. The complainant never took off her clothes and the defendant never attempted to use force to make her do so. The defendant left the complainant in the living room several times to talk to his roommate in the kitchen. The complainant testified that she could not leave because a key was needed to open the apartment door from the inside. At one point, when she was alone in the living room, she went to the window and, using the curtain, she suspended herself out of the window. The curtain rod broke and she fell some 25 feet to the ground. She was taken by ambulance to the hospital.

We agree with the defendant's claim that the People failed to prove beyond a reasonable doubt his guilt of unlawful imprisonment in the first degree by legally sufficient evidence. Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932) and giving the People the benefit of every reasonable inference (People v. Kluck, 131...