People v. Finkelstein , 28 N.Y.3d 345 ( 2016 )

OPINION OF THE COURT

Pigott, J.

Defendant was charged with, among other crimes, two counts of coercion in the first degree for threatening his former girlfriend (see Penal Law § 135.65 [1]). Specifically, he threatened her physically and threatened to ruin her small business after she asked defendant to move out of her apartment. Defendant refused and used various threats to ensure that he could stay. The former girlfriend then reported his conduct to his parole officer, who had defendant arrested and incarcerated. Defendant continued to harass and threaten his former girlfriend from jail.

At trial, defendant requested that the jury be instructed on the crime of coercion in the second degree (Penal Law § 135.60) as a lesser included offense of coercion in the first degree. He argued that there was a reasonable view of the evidence that his acts lacked the heinous quality required under the greater offense of coercion in the first degree. Supreme Court denied the application, stating that a charge to the lesser included offense was not warranted. The jury convicted defendant of both counts of coercion in the first degree, and the Appellate Division unanimously affirmed (121 AD3d 615 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (26 NY3d 967 [2015]), and we now affirm.

Defendant makes two primary arguments on appeal. First, he argues that the court—not the jury—made a factual determination regarding the seriousness (heinousness) of his threats when it declined to instruct the jury on the lesser included offense of coercion in the second degree, and that such a determination violated the rule set out in Apprendi v New Jersey (530 US 466, 490 [2000]). However, defendant never objected to his conviction or sentence on Apprendi grounds, rendering that issue unpreserved for our review (see People v Kelly, 16 NY3d 803, 804 [2011]).

Second, defendant argues that the trial court erred in declining to instruct the jury on the lesser included offense of coercion in the second degree because “there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 [1]). This Court long ago recognized that the crimes of coercion in the first and second degree “are identical when the coercion is committed by instilling a fear that a person will be physically injured or that property will be damaged” (People v Eboli, 34 NY2d 281, 285 [1974]). While the language of the statutes does not provide guidance on which crime is to be charged, we held in Eboli that the legislative history reveals an intention that the felony of “coercion in the first degree ... be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property” (id. at 287). The legislature, by making the misdemeanor offense “all-inclusive,” created a “safety-valve” feature “in the event an unusual factual situation should develop where the method of coercion is . . .by threat of personal or property injury, but for some reason . . . lacks the heinous quality the Legislature associated with such threats” (id. at 287).

We later explained that second-degree coercion should be charged as a lesser included offense only in the “unusual factual situation” in which the coercion by threat of personal or property injury lacks “the heinousness ordinarily associated with this manner of commission of the crime” (People v Discala, 45 NY2d 38, 43 [1978]). We thus left open the possibility that, based on the evidence presented in a given case, a trial court could submit second-degree coercion as a lesser included offense of coercion in the first degree if the “threatened physical injury is not truly fearsome” (id. at 42).

This case does not present one of those “unusual factual situations” warranting the lesser included charge (id. at 43). The People’s evidence showed that defendant coerced his former girlfriend by threatening to drive away her clients, make it impossible for her to conduct business, hurt her physically, and even kill her. Such methods of coercion have the heinous quality contemplated by the first-degree statute, and therefore the second-degree charge was not warranted.

Finally, the trial court did not infringe defendant’s constitutional right to represent himself by ruling that he forfeited his right to proceed pro se during pretrial proceedings. The court determined that defendant had abused his privileges of phone and law library access while incarcerated pending trial in such a way that jeopardized his ability to prepare for trial. Nevertheless, it subsequently allowed defendant to represent himself at trial (see People v McIntyre, 36 NY2d 10, 17 [1974] [a defendant may not invoke the right to defend pro se where he has “engaged in conduct which would prevent the fair and orderly exposition of the issues”]). Nor did the trial court abuse its discretion in precluding the testimony of certain witnesses at trial (see generally People v Hudy, 73 NY2d 40, 56 [1988]).

Accordingly, the order of the Appellate Division should be affirmed.