People v. Usher

• Decision Date: 01 December 1975
• Citation: 49 A.D.2d 499,375 N.Y.S.2d 881
• Parties: The PEOPLE, etc., Respondent, v. Ricky USHER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 881

375 N.Y.S.2d 881

49 A.D.2d 499

The PEOPLE, etc., Respondent, v. Ricky USHER, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 1, 1975.

William A. Gogel, Brooklyn, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Laurie Stein Hershey, Brooklyn, of counsel), for respondent.

Before RABIN, Acting P.J., and HOPKINS, CHRIST, MUNDER and SHAPIRO, JJ.

SHAPIRO, Justice.

The defendant was indicted for the crimes of robbery in the first degree, robbery in the second degree, grand larceny in the third degree and kidnapping in the second degree. After a jury trial, he was acquitted of the robbery and larceny charges and convicted of the kidnapping charge. On this appeal he contends that, as a matter of law, the conviction cannot stand. We agree and therefore reverse the judgment of conviction and dismiss the kidnapping count.

THE ISSUE

May a defendant be convicted of kidnapping in the second degree (Penal Law, § 135.20) when the kidnapping was merely incidental to, and an integral part of, the underlying felony of robbery, for which the defendant was charged but acquitted after a jury trial?

THE FACTS

The relevant facts, viewed most favorably to the People, may be summarized as follows:

The victim was accosted at knifepoint by the defendant and a confederate on May 29, 1973, at about 12:15 A.M., as she was walking home from work. She was forcibly taken to a vacant building, a distance of a minute's walk away, where they took some change from her pocketbook. She was then taken to a room in an adjoining building where she was raped by both men. The time interval of the whole incident was approximately 25 minutes. The defendant was not indicted for rape. ¹

THE LAW

Subdivision 1 of section 1250 of the former Penal Law provided, in pertinent part, that one who 'confines' another 'with intent to cause him * * * to be confined * * * against his will' was guilty of kidnapping. The maximum sentence provided (Id., subd. 3) was death, until the statute was changed in 1963 ² to make it life imprisonment.

Prior to 1965, when People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 was decided, New York decisional law was that virtually any restraint, confinement or movement of the victim constituted kidnapping, even though it was undertaken solely to facilitate commission of another crime (People v. Florio, 301 N.Y. 46, 92 N.E.2d 881). The Levy case involved convictions for robbery in the first degree, possession of a pistol and kidnapping. The Court of Appeals, recognizing the severity of the sentence for a kidnapping conviction, and the fact that the then existing definition of kidnapping could 'literally overrun several other crimes, notably robbery and rape, * * * since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes' (15 N.Y.2d p. 164, 256 N.Y.S.2d p. 796, 204 N.E.2d p. 844), overruled Florio and rejected its construction of the kidnapping statute. The Levy court stated (p. 164, 256 N.Y.S.2d p. 796, 204 N.E.2d p. 844):

'It is unlikely that these restraints, sometimes accompani 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 must sometimes be spelled out literally from the statutory words.'

The court thereupon limited the application of the kidnapping statute then in effect to "kidnapping' in the conventional sense in which that term has now come to have acquired meaning' (pp. 164--165, 256 N.Y.S.2d p. 796, 204 N.E.2d p. 844) and reversed the kidnapping convictions. Thereafter, in People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206, where the convictions were for attempted rape in the first degree, other crimes and kidnapping, the kidnapping convictions were reversed on the same theory.

The Levy holding found favor in several other jurisdictions, most notably in California. In 1969, the Supreme Court of that state, in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, citing Levy with approval, overruled numerous earlier decisions and held that movements merely incidental to the commission of a robbery which do not substantially increase the risk of harm over and above that necessary and present in the robbery were not sufficient to constitute the separate felony of aggravated kidnapping under California law. ³ The holding and spirit of Levy and Lombardi were both preceded and followed by new legislative proposals and enactments. The Model Penal Code, adopted by the American Law Institute in 1962, provides:

' § 212.1 Kidnapping

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:

(a) to hold for ransom or reward, or as shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter; or

(c) to inflict bodily injury on or to terrorize the victim or another; or

(d) to interfere with the performance of any governmental or political function.

Kidnapping is a felony of the first degree unless the actor voluntarily releases the victim alive in a safe place prior to trial, in which case it is a felony of the second degree.'

The drafters of the Model Code noted that

'it is desirable, to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice. * * * Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties. The criminologically nonsignificant circumstance that the victim was detained or moved incident to the crime determines whether the offender lives or dies.' (Comments to § 212.1, Tent.Draft No. 11, 1960, pp. 13--14.)

The draftsmen of this section of the Model Penal Code were of the opinion that it would 'preclude kidnapping convictions based on trivial changes of location having no bearing on the evil at hand' (Comments to § 212.1, Supra, p. 16).

The Model Penal Code definition of kidnapping was initially promulgated in 1964, one year prior to the Levy decision, and in virtually identical terms, by the draftsmen of the New York State Commission on Revision of the Penal Law and Criminal Code (see N.Y.Legis.Doc., 1964, No. 14, p. 23). Subsequent to the Levy decision the Legislature enacted a statutory scheme for the crime of kidnapping, effective September 1, 1967 (L.1965, ch. 1030), which provides in pertinent part:

' § 135.20 Kidnapping in the second degree ⁴

A person is guilty of kidnapping in the second degree when he abducts another person.'

' § 135.25 Kidnapping in the first degree

A person is guilty of kidnapping in the first degree when he abducts another person and when:

1. His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct, or to refrain from engaging in particular conduct; or

2. He restrains the person abducted for a period of more than twelve hours with intent to:

(a) Inflict physical injury upon him or violate or abuse him sexually; or

(b) Accomplish or advance the commission of a felony; or

(c) Terrorize him or a third person; or

(d) Interfere with the performance of a governmental or political function * * *.'

Kidnapping in the second degree is a class B felony, which carries a maximum term of imprisonment of 25 years. Kidnapping in the first degree is a class A--I felony, which carries a maximum term of life imprisonment. (Penal Law, §§ 135.20, 135.25, 70.00, subd. 2, pars. (a), (b).)

The Practice Commentary to section 135.20 in McKinney's Consolidated Laws of New York (Book 39, Penal Law) states:

'Kidnapping in the second degree embraces the entire spectrum of genuine kidnapping conduct, * * *. Examples of kidnapping conduct supporting a second degree but not a first degree conviction are numerous: child stealing by a love-starved woman; abduction and confinement of a woman for a day or so in an isolated place in order to prevent her from engaging in a marriage ceremony; and confinement of a guard or watchman by violence or threat for a few hours for the purpose of advancing a burglary' (emphasis supplied).

The Practice Commentary to subdivision 2 of section 135.25 (id.) (the 12-hour detention provision) states:

'Perhaps the principal significance of this provision lies in its application to abductions which are incidental to or an integral part of the commission of an independent crime, such as a robbery or rape in which the victim is removed or confined for a given period of time in order to effectuate the criminal purpose. Where the abduction period is brief, the criminal enterprise in its entirety appears as little more than an offense of robbery or rape, and lacks a genuine 'kidnapping' flavor. Nevertheless, cases of this nature are sometimes prosecuted as kidnapping in order that the higher penalty for the latter may be invoked * * *. The New York Court of Appeals has indicated an aversion to this strategy by refusing to recognize as kidnapping a robbery executed in part by means of a brief abduction (People v. Levy, 1965, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 * * *).

'The latter type of case is here excluded from the first degree kidnapping ambit by the requirement that the abduction period be of at least twelve hours duration. While that figure is an arbitrary one, it represents an attempt to designate a point in the course of such a...