| People v Adams |
| 2008 NY Slip Op 03308 [50 AD3d 433] |
| April 15, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DarrylAdams, Appellant. |
—[*1] Darryl Adams, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J., at hearing; Joseph Fisch,J., at jury trial and sentence), rendered December 4, 2003, convicting defendant of attemptedcoercion in the first degree, and sentencing him, as a second felony offender, to a term of 2 to 4years, unanimously affirmed.
Defendant failed to preserve his claim that his conviction of attempted coercion in the firstdegree violated the principles of Apprendi v New Jersey (530 US 466 [2000]), or hisclaim that the first-degree coercion statute (Penal Law § 135.65 [1]) is unconstitutionalbecause it purportedly contains a mandatory presumption of "heinousness" (see People vIannelli, 69 NY2d 684 [1986], cert denied 482 US 914 [1987]), and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on themerits. When coercion is predicated on a threat of physical injury or property damage, "it is ananomaly of our statutes that the language used to define the felony of coercion in the first degree(Penal Law, § 135.65) is virtually identical to that employed to describe the misdemeanorof coercion in the second degree (Penal Law, § 135.60)." (People v Discala, 45NY2d 38, 41 [1978].) "Making the misdemeanor offense 'all-inclusive' is apparently a'safety-valve' feature included in the event an unusual factual situation should develop where themethod of coercion is literally by threat of personal or property injury, but for some reason itlacks the heinous quality the Legislature associated with such threats." (People v Eboli,34 NY2d 281, 287 [1974].) "Heinous quality" is not an element of the higher degree of coercion.On the contrary, in the situation of coercion by threat of injury to person or property, theelements of the two degrees are the same, and "the discretion to decide what is an 'exceptional'case warranting prosecution for the lower degree, is entrusted to the prosecutor." (Id. at288.) There was no Apprendi violation because the court did not increase the penalty forthe crime of which defendant had been convicted based upon facts not found by the jury.Furthermore, the court did not instruct the jury that "heinousness" is presumed (compareSandstrom v Montana, 442 US 510 [1979]), and the first-degree coercion statute does notshift the burden of proving any element of the crime to the defendant (compare Mullaney vWilbur, [*2]421 US 684 [1975]). In explaining to the jury theelements of first-degree coercion or attempted coercion, the court never mentioned"heinousness," nor was it required to do so.
Defendant's argument that the trial court improperly denied his request to have coercion inthe second degree charged as a lesser included offense of coercion in the first degree is mootsince he was acquitted of the first-degree coercion charges and convicted only of attemptedfirst-degree coercion. Defendant improperly claims for the first time in his reply brief that thetrial court should have charged attempted coercion in the second degree as a lesserincluded offense of attempted coercion in the first degree. In any event, his argument isunpreserved since he neither requested such a charge nor objected to the charge given, and wedecline to review it in the interests of justice. As an alternative holding, we also reject it on themerits. Even when viewed in the light most favorable to defendant, there is no reasonable viewof the evidence which would support a finding that defendant committed the lesser offense butnot the greater (see Discala, 45 NY2d at 41).
We have considered and rejected defendant's pro se claims. Concur—Lippman, P.J.,Tom, Williams and Acosta, JJ.