People v. Warren

• Decision Date: 02 July 1984
• Citation: 103 A.D.2d 760,477 N.Y.S.2d 234
• Parties: The PEOPLE, etc., Respondent, v. Jerry WARREN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 234

477 N.Y.S.2d 234

103 A.D.2d 760

The PEOPLE, etc., Respondent, v. Jerry WARREN, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 2, 1984.

William E. Hellerstein, New York City (Judith Waksberg, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Jeanette Lifschitz, Kew Gardens, of counsel), for respondent.

Before LAZER, J.P., and THOMPSON, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 12, 1981, convicting him of robbery in the third degree, unauthorized use of a motor vehicle, unlawful imprisonment in the second degree, and escape in the second degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reducing the conviction of escape in the second degree to one of escape in the third degree, and vacating the sentences imposed on all charges of which defendant stands convicted. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing.

The evidence reveals that at about 6:30 P.M. on May 27, 1980, Police Officer Joseph McMahon and his partner, Sergeant Corcorhan, were driving through a parking lot located at 79-00 Queens Boulevard when Police Officer McMahon observed the defendant with a screwdriver in his hand, standing at the rear of a vehicle opening its trunk. As Sergeant Corcorhan approached defendant in order to question him, defendant ran. Defendant, however, was eventually caught and placed under arrest for attempted grand larceny in the second degree, a felony, and possession of burglar's tools. Following his arrest, defendant complained of a stomachache and was taken to Elmhurst General Hospital. When McMahon returned to duty the following afternoon of May 28, he was sent to Elmhurst General Hospital to guard defendant. He observed that the defendant was not handcuffed and was lying on an "operating table" in the corridor. Sometime later, while McMahon was trying to expedite defendant's medical treatment, defendant managed to get off the table without McMahon's noticing him. The next thing McMahon observed was defendant running down the corridor; defendant made a left turn into the X-ray room. McMahon followed him into the X-ray room, and through an open window, observed him running down Broadway. McMahon went out the front door of the hospital, and observed defendant at that time opening the door of a car which had been stopped for a red light, and dragging the woman driver and her son out of the car. Defendant then drove away, with the woman's daughter still in the front seat of the car. After driving about 8 to 10 blocks, defendant let the girl out of the car. Defendant was subsequently placed under arrest on or about October 9, 1980 and was indicted for robbery in the second degree, unauthorized use of a motor vehicle, reckless endangerment, unlawful imprisonment in the second degree, and escape in the second degree, all stemming from the events of May 28.

Subdivision 2 of section 205.10 of the Penal Law provides that "person is guilty of escape in the second degree when: * * * been arrested for, charged with or convicted of a felony, he escapes from custody" (emphasis added). Police Officer McMahon testified that the defendant was arrested for attempted grand larceny in the second degree, which is a felony (Penal Law, §§ 110.00, 110.05 and 155.35). While McMahon's testimony is sufficient to establish that he had probable cause to believe defendant attempted to steal property, the People did not present any evidence whatsoever as to the value of the property. Thus, there apparently was no basis to arrest defendant for the felony of attempted grand larceny in the second degree instead of the misdemeanor of attempted petit larceny (Penal Law, §§ 110.00, 110.05, 155.25; see People v. Cahill, 83 A.D.2d 589, 441 N.Y.S.2d 119; People v. Johnson, 59 A.D.2d 914, 399 N.Y.S.2d 254; People v. Bell, 55 A.D.2d 624, 389 N.Y.S.2d 632). On facts very similar to those of the instant case, the United States Court of Appeals for the Fifth Circuit in Theriault v. United States, 5th Cir., 434 F.2d 212, vacated a sentence imposed for escaping from custody after being arrested on a felony charge, and remitted the matter to the trial court to modify the judgment to reduce the conviction to escaping from custody after being arrested on a misdemeanor charge. At Theriault's trial, documents were introduced into evidence to show that he was being held in custody at the time of his escape on a charge of violating section 641 of title 18 of the United States Code which provides that:

"Whoever embezzles, steals, purloins, or...