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(CITE AS: 111 MISC.2D 592,  444 N.Y.S.2D 810)

                       The PEOPLE of the State of New York
                           Richard DUPONT, Defendant.
                           Supreme Court, Trial Term,
                            New York County, Part 68.
                                 Sept. 22, 1981.

	Robert Morgenthau, Dist. Atty., New York County, New York 
City, for the People;  Merri Bernstein and Harold Wilson, Asst. 
Dist. Attys.,  New York City, of counsel.

	JOHN KLOTZ, New York City, for defendant.

                               MEMORANDUM DECISION


  Defendant's request that the court submit the crime of attempt
ed coercion in the second degree to the jury as a lesser included 
offense of attempted  coercion in the first degree is being 
granted.  The apparent similarity of the  statutory language 
defining these two crimes and the dearth of authority as to  the 
distinction between the two requires that I elucidate the basis 
for this  decision.

                               APPLICABLE STATUTES

  The first count of the indictment charges defendant with the 
commission of the  crime of attempted coercion in the first 
degree in violation of Penal Law  135.65(1), a class D felony.  
(The alleged attempt to commit this crime is  irrelevant for 
purposes of this decision and will be disregarded.)  Defendant  
has made a request that I submit the lesser included crime of 
coercion in the  second degree in violation of Penal Law 
135.60(2), a class A misdemeanor.  A  close examination of the 
pertinent provisions of Penal Law sections 135.65(1)  and 
135.60(2) reveals that these sections use the identical language 
to  define the felony of first degree coercion and the misde
meanor of second degree  coercion when the criminal conduct 
charged relates to the fear of damage to  property having been 
instilled in the victim.  Thus, resort was made to  decisional 
                                    CASE LAW

  Two relatively recent Court of Appeals decisions discuss the 
confusion created  by this legislative anomaly.

  In the first, People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 
313 N.E.2d  746 (1974), the defendant  "challenged the statute 
defining coercion as a felony as violative of the  constitutional 
guarantees of due process and equal protection in that exactly  
the same elements are required for coercion in the second degree, 
a  misdemeanor, ..."  (at p. 284, 357 N.Y.S.2d 435, 313 N.E.2d 

  In upholding the prosecutorial discretion present in this 
situation, as well  as the constitutionality of both statutes, 
the Court reasoned as follows (at p.   287, 357 N.Y.S.2d 435, 313 
N.E.2d 746): 

   "... 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 misde
meanor 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.  
[Emphasis added.]

  In People v. Discala, 45 N.Y.2d 38, 407 N.Y.S.2d 660, 379 
N.E.2d 187  (1978), the second decision on point, Judge Cooke, 
writing for a unanimous  Court of Appeals, affirmed the trial 
court's refusal to charge the lesser  included offense of at
tempted coercion in the second degree.  Discala is  factually 
distinguishable from the present case, since it involved a threat 
to  kill or have someone killed, as opposed to a threat to damage 
property.   Nevertheless, this decision is valuable for the 
guidance it provides for the  proper interpretation to be accord
ed the coercion statutes in issue.  The  Discala court initially 
noted that 

   "In deciding whether to submit a lesser included offense to 
the jury, ... the  focus is on whether there is some reasonable 
basis in the evidence for  finding the accused innocent of the 
higher crime, and yet guilty of the  lower one."  (p. 41, 407 
N.Y.S.2d 660, 379 N.E.2d 187--citation omitted).  

  After citing the quoted " 'safety-valve' feature" language from 
Eboli,  supra, with approval, the court held

   "that there was no error here in refusing to submit to the 
jury the lesser  included offense of attempted second degree 
coercion.  That charge should be  reserved for the 'unusual 
factual situation', not presented by the evidence  here, where 
the method of coercion is by threat of personal physical injury  
which for some reason lacks a heinous quality."  (p. 43, 407 
N.Y.S.2d 660,  379 N.E.2d 187) [Emphasis added]

  Research has uncovered only one appellate decision in which 
both Eboli,  supra, and Discala, supra, are relied upon.  In 
People v. Hertz, 77  A.D.2d 885, 430 N.Y.S.2d 665 (2d Dept., 
1980), which also involved threats to  kill a person, the court 
held that

   "the trial court, under the circumstances, committed revers
ible error in  refusing defendant's request to submit the crime 
of coercion in the second  degree to the jury as a lesser includ
ed offense."  (p. 886, 430 N.Y.S.2d  665).

  This conclusion was based upon the court's determination that 
"the heinous  intent behind the threats is questionable" so that 

   "These circumstances, viewed in a light most favorable to 
defendant, could  lead a reasonable jury to conclude that the 
coercion practiced had been of a  nonheinous [sic] nature.  The 
trial court, therefore, was obligated to submit  the lesser 
included offense to the jury as requested."  (p. 887, 430  
N.Y.S.2d 665) [Emphasis added.]

                          DEFENDANT'S REQUEST TO CHARGE

  Based upon those authorities, I am granting defendant's request 
to charge  coercion in the second degree, as a lesser included 
offense under the  indictment count alleging commission of first 
degree coercion involving threats  to damage property.  I do so 
based upon my finding that there is a reasonable  basis in the 
evidence for the jury to conclude that defendant was only guilty  
of the lesser of these two crimes.  In so charging the jury, I 
intend to  instruct them in the following manner concerning the 
"heinous" nature of the  alleged threats:

   That the defendant's threat to damage property was of a 
heinous nature.  The  word "heinous", as used here, according to 
Webster's Dictionary means  "extremely wicked" or "shockingly 
evil".  In this regard, I charge you that in  the usual case 
involving a threat to cause property damage, such threats should  
be viewed by you as being heinous.  It is only in the unusual or 
rare case that  such threats do not rise to the degree or level 
of being heinous.

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