People v. Seifert

OPINION OF THE COURT

DONALD P. DERIGGI, J. The defendant, Jay Seifert, by his attorney, Joseph Falbo, Esq., has brought a motion seeking the following relief, inter alia: an inspection of the Grand Jury minutes and a dismissal of the indictment on the basis that the evidence presented to the Grand Jury was insufficient to sustain the offenses charged or any lesser offenses. The defendant has been indicted for one count of coercion in the first degree, a class D felony, one count of bribe receiving in the third degree, a class D felony, and one count of official misconduct, a class A misdemeanor. The allegations are that the defendant demanded, threatened and/or accepted sex from the passenger in a motor vehicle in exchange for and with the understanding that he would not proceed against the driver of the motor vehicle who was driving in violation of the Vehicle and Traffic Law.

A. Sufficiency of Evidence

The evidence presented, when viewed in the light most favorable to the People, is sufficient to sustain the indictment as to all counts contained therein. The issue regarding force, i.e., an implied threat that placed the complainant in fear of physical injury to herself or another, is supported by the evidence. In People v Bennett (79 NY2d 464 [1992]), the facts are somewhat similar and the Court finds the evidence sufficient on the issue of force. In Bennett, the victim was stopped by a police officer who advised her that she had been driving erratically and had failed to signal a lane change. The officer instructed the victim to leave her car, walk a straight line and then ordered her to go to the passenger seat of his patrol car. Once in the police vehicle, he told her to blow in his face as a sobriety test. When the victim did so the officer began to fondle her. He then told her that he was going to "do it" with her but that he had to go back to the barracks for a condom. The victim followed the officer to the barracks in her own car but the officer had retained her license and registration. At the barracks, the officer put the victim in the police car and told her to wait while he went inside to get a condom. When he returned they drove off to a secluded area where the officer sexually attacked the victim. The victim testified that she was terrified throughout this entire period and, since the defendant was armed, she felt that any escape attempt would be futile. Likewise, in People v Smolen (166 AD2d 248 [1st Dept 1990]), a case involving sodomy and sexual abuse, the victim testified that he was "frozen in fear" and the reason why he complied with defendant's requests was because he did not want to die. In determining the sufficiency of evidence and the existence of force, the inquiry is focused on what the victim, observing the defendant's conduct, feared the defendant would or might do if the victim did not comply with his demands. (People v Thompson, 72 NY2d 410, 415-416 [1988].) Further, whether the sexual acts were voluntary or the result of forcible compulsion is a question of fact for the jury to determine, or, in this case, the Grand Jury. (People v Hill, 163 AD2d 852 [4th Dept 1990].)

B. Repugnancy

However, while the evidence presented is legally sufficient to sustain the charge of coercion in the first degree, the next issue for consideration is that of repugnancy. A verdict is repugnant when a jury has acquitted a defendant of one charge and such decision has negated an essential element of another charge for which the jury found the defendant guilty. (People v Tucker, 55 NY2d 1 [1981].) The issue of repugnancy comes into consideration in this case because the Grand Jury was charged on the crimes of rape in the first degree, sodomy in the first degree and sexual abuse in the first degree as well as the crimes for which defendant was indicted, including coercion in the first degree. The focus of the analysis is on the element of "forcible compulsion" as required for the sex crimes and the elements of coercion. "Forcible compulsion," as it applies to this case, "means to compel by * * * "a threat, express or implied, which places a person in fear of immediate death or physical injury to * * * herself or another person" (Penal Law § 130.00 [8] [emphasis supplied]). "Coercion in the first degree," as charged in this case, occurs when a person "compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in * * * by means of instilling in h[er] a fear that, if the demand is not complied with, the actor * * * "will cause physical injury to a person." (Penal Law §§ 135.60, 135.65 [1] [emphasis supplied].) The elements of "forcible compulsion" correspond to the definition of coercion in the first degree, as applicable to the facts of this case. In the case at bar, there was no physical force alleged to have been used, rather the allegations support an is a determination by the grand jurors that the evidence presented did not establish forcible compulsion. Their evaluation was on the merits and resulted in their rejection of the People's evidence on that issue. Based upon the foregoing, this Court concludes that repugnancy does apply to an indictment and, in the case at bar, it is clear that count one is repugnant. As there was no indication of confusion or misunderstanding by the Grand Jury, count one of the indictment is dismissed as repugnant and the People may not resubmit this case to the same or another Grand Jury. The remainder of the Grand Jury proceeding was not defective; proper legal advice and adequate instructions were given by the District Attorney, the composition of the Grand Jury was sufficient, and in no way was the proceeding violative of the defendant's constitutional rights (CPL 210.35 [5]; 190.25 [6]). Accordingly, the defendant's motion is granted in part and denied in part as indicated. [Portions of opinion omitted for purposes of publication.]