Under New York Law, there are two degrees of
Coercion (Penal Law 135.60 and 135.65), but the felony crime is defined in
the same language as the misdemeanor when the defendant "compels or
induces a person to engage in conduct which the latter has a legal right
to abstain from engaging in, or to abstain from engaging in conduct in
which he has a legal right to engage, by means of instilling in him a fear
that, if the demand is not complied with, the actor or another will cause
physical injury to a person or cause damage to property."
The Court of Appeals has twice addressed the uniqueness
of the New York Coercion statutes: that the felony of Coercion 1st
Degree is identical to the misdemeanor of Coercion 2nd Degree,
when the coercion is accomplished by instilling a fear that a person will
be physically injured or that property will be damaged. In People v
Eboli, 34 NY2d 281, 357 NYS2d 435 (1974), the Court ruled that the
fact that identical elements were required did not violate a defendant’s
constitutional guarantees of due process or equal protection.
The Court reviewed the McKinney’s Practice
Commentaries and concluded that, "despite the misdemeanor section,
coercion by either of these means, was intended to be prosecuted as a
felony." 34 NY2d at 285-286. The Court’s analysis continued:
it is likely that despite the verbal duplication in
the lower degree, the drafters and the Legislature intended that the
general rule be that coercion in the first degree, the felony, be
charged whenever the method of coercion was to instill a fear of
injury to a person or damage to property. Making the misdemeanor
offense "all-inclusive" is apparently a
"safety-valve" feature included in the event an unusual
factual situation should develop where the method of coercion is
literally by threat of personal or property injury, but for some
reason it lacks the heinous quality the Legislature associated with
such threats. 34 NY2d at 287.
That the felony is the presumptive charge when a
defendant instills fear of physical injury or property damage is made even
more emphatic by the Eboli Court:
It seems clear that despite the identity of
language, there is a guideline differentiating felony and misdemeanor
coercion – in general, the misdemeanor is to be charged where the
method of coercion is covered by subdivisions three to nine, and the
felony is to be charged if the "additional element" of a
threat of personal or property injury is involved. . . . the higher
degree would be charged in other than exceptional cases. 34 NY2d
at 288 (emphasis supplied).
The Court of Appeals next addressed the very issue
presented here: when should the lesser included charge of Coercion 2nd
Degree be given to the trial jury? In People v Discala, 45 NY2d 38,
407 NYS2d 660 (1978), the Court again emphasized that the usual
case involving a threat to cause physical injury to induce a person to do
an act the person has right to abstain from, should be charged at the
felony level, saying:
In Eboli, this court construed the
misdemeanor as a "’safety-valve’ feature" and suggested
that it was reserved for an "unusual factual situation."
[citation omitted] The rationale for this approach is that it would
indeed be an exceptional case where the method of coercion is by
threat of personal or property injury while at the same time the
"heinous quality" is lacking. While a vivid imagination may
certainly conjure up a situation where threatening physical injury is
not truly fearsome, this would be a rare event indeed. 45 NY2d at 42.
. . . . it will be a rare and unusual event for the
prosecution to have established coercion by threat of personal
physical injury without showing the heinousness ordinarily associated
with this manner of commission of the crime. 45 NY2d at 43.
In Discala, the Court of Appeals ruled that the
trial judge did not err in denying the requested jury charge of Coercion 2nd
Degree. Eventhough the threat in that case was made over the telephone,
since it was a "proposal to kill or have the victim killed," the
Court of Appeals found that "the malevolent nature of the threat is
at once obvious," and the requested charge down to a misdemeanor
"was manifestly unwarranted and properly denied." Id.
Furthermore, the Court said, "fundamentally, the
jury should not be permitted to choose between the crime charged and some
lesser crime where the evidence essential to support a verdict of guilt of
the lesser necessarily proves guilt of the greater crime, as well
[citations omitted]. Id.
In the instant case, the evidence at trial clearly
supports the defendant’s conviction for the greater crime of Coercion 1st
Degree. Thus, the trial court properly denied the defendant’s request
that the jury be permitted to choose the lesser crime. "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 [emphasis supplied and citations omitted]. People v Zuziela,
98 AD2d 161, 471 NYS2d 351 (3rd Dept 1983). Refusal to
submit the lesser charge of Coercion 2nd was upheld where the
threat of personal injury involved the display of a handgun, the Court
noting that the alleged threat was "particularly heinous, involving
being shot by a gun, and, thus, his action constituted coercion in the
first degree." 471 NYS2d at 352.
The Third Department ruled in People v Pereau, 99
AD2d 591, 471 NYS2d 416 (3rd Dept 1984), that the trial court
acted properly in refusing to charge the lesser included offense of
Coercion 2nd Degree. "To be entitled to the charge of the
lesser crime under the second prong of the test, it was incumbent upon
defendant to show a reasonable basis in the evidence for finding him not
guilty of the felony coercion and guilty of the misdemeanor of coercion. .
. . . such a lesser charge should be reserved for the unusual factual
situation where the method of coercion is by threat of personal physical
injury which for some reason lacks a heinous quality." 471 NYS2d at
418. The threats in Pereau were made by brandishing a knife and
holding it against the victim’s body.
In neither Zuziela nor Pereau did the
defendant express in words that he would kill or injure the victim. But in
both cases, the threat to do so was amply communicated by his displaying a
weapon. The same applies to the instant case.
As in People v Wager, 228 AD2nd 741, 742, 644
NYS2d 74, 75 (3rd Dept 1996), "the events giving rise to
the offense of which he now stands convicted evidence a wanton disregard
for the safety and well-being of his victim, and a willingness to impose
his will on others by force."
For a discussion of using the Coercion statutes to charge intimidating
conduct which is part of an ongoing pattern of control and violence,
please read the Note and Comment "If it Quacks like a
Duck: Recharacterizing Domestic Violence as Criminal
Coercion," in 65 Brooklyn Law Review 1207 (Winter, 1999) by
Joan Erskine.