People v. Zuziela

• Decision Date: 29 December 1983
• Citation: 471 N.Y.S.2d 351,98 A.D.2d 161
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent ZUZIELA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 351

471 N.Y.S.2d 351

98 A.D.2d 161

The PEOPLE of the State of New York, Respondent, v. Vincent ZUZIELA, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 29, 1983.

[98 A.D.2d 162] Colin Kenneally, Albany, for appellant.

Sol Greenberg, Dist. Atty., Albany (John P.M. Wappett, Albany, of counsel), for respondent.

Before SWEENEY, J.P., and MAIN, CASEY, MIKOLL and LEVINE, JJ.

OPINION FOR AFFIRMANCE

MAIN, Justice.

Defendant was indicted on two counts of coercion in the first degree and two counts of unlawful imprisonment in the first degree. The indictment arose out of an incident which occurred on July 12, 1981 at the Rustic Cabin, a bar in the Town of Rensselaerville, Albany County. The record reveals that defendant and one Larry Guarino were at the bar in the afternoon, but defendant left, claiming that he was tired and was going home. Guarino remained and drank steadily throughout the afternoon. Around 8:00 P.M., Guarino approached a woman patron and eventually became abusive to her. Two men in the bar, David Pethick and his companion Frank Davis, came to the woman's aid and began heatedly arguing with Guarino. There was no physical altercation at this time, however, and Guarino eventually left the bar.

Shortly thereafter, Guarino returned to the bar accompanied by defendant. According to at least three witnesses, Guarino had a handgun and ordered Pethick and Davis to place their hands on the bar, which they did. Guarino directed defendant to frisk Pethick and Davis, but testimony reveals that only Pethick was searched. The State Police were called but before they arrived, Guarino and defendant were persuaded by others in the bar to leave. Guarino and defendant returned to the bar's parking lot, at which time the State Police arrived and arrested them. No handgun was recovered from Guarino or defendant or found after a search of Guarino's house and car; however, a holster and ammunition were discovered at the house and the cylinder of a handgun and ammunition were found in the trunk of a car.

Guarino was indicted on the same counts as defendant, but the case against him was apparently dismissed following his death by stabbing. Defendant was convicted after a jury trial of coercion in the first degree as against Pethick, but was acquitted of coercion in the first degree as against Davis, as well as of the unlawful imprisonment counts. Defendant was sentenced to an indeterminate term of imprisonment of two and one-third to seven years and this appeal followed.

We first reject defendant's claim that County Court erred in failing to charge coercion in the second degree as a lesser included offense of coercion in the first degree. A lesser included offense need be charged only when there is a reasonable view of the evidence to support guilt on the lesser count and acquittal on the greater (see, e.g., CPL 300.50; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). In this case, the personal injury which was allegedly threatened by Guarino was particularly heinous, involving being shot by a gun, and, thus, his action constituted coercion in the first degree (see People v. Discala, 45 N.Y.2d 38, 41, 407 N.Y.S.2d 660, 379 N.E.2d 187; People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 313 N.E.2d 746). The mere fact that no gun was found, which would arguably afford a view of the evidence supporting the unusual nonheinous circumstances covered by coercion in the second degree (see People v. Discala, supra, p. 43, 407 N.Y.S.2d 660, 379 N.E.2d 187), is an insufficient basis to conclude that in fact no gun was involved. This is particularly true in light of the unimpeached testimony of three witnesses that Guarino held a handgun on Pethick and Davis and ordered them to do certain acts while they were so threatened, the fact that a holster, ammunition and handgun cylinder were found among Guarino's possessions, and the circumstantial evidence that defendant intentionally aided Guarino (see Penal Law, § 20.00). With these facts prevailing, a finding by the jury that Guarino had no handgun would have been unreasonable and speculative and a charge on the lesser included offense of coercion in the second degree was, therefore, not permissible under such circumstances (see People v. Scarborough, 49 N.Y.2d 364, 371, 426 N.Y.S.2d 224, 402 N.E.2d 1127). We also find no merit to defendant's contention that harassment should have been charged as a lesser included offense, for harassment requires an element of intent (see Penal Law, § 240.25) which is not present in coercion in the first degree (Penal Law, § 135.65). Accordingly, one could commit coercion in the first degree and not concomitantly, by the same conduct, commit harassment (see CPL 1.20, subd. 37; People v. Glover, supra ).

Defendant also claims that the verdict was inconsistent in that he was acquitted of coercion in the first degree as against Davis but convicted of that crime as against Pethick, although the charges arose from the same operative facts. The People, relying on People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617, argue that the verdicts are...