In the indictment before us, consisting of one count, defendant is charged with the crime of attempted coercion in the first degree in that:
The said defendant, on or about the 21st day of April, 1973 did attempt to compel and induce Dr. ERF, Director, Bronx Childrens Hospital, Bronx County, to engage in conduct which the latter had a legal right to abstain from engaging in, or to abstain from engaging in conduct in which Dr. ERF had a legal right to engage, by instilling in the said Dr. ERF that he, the defendant, would cause physical injury to the said Dr. ERF. Specifically, the said defendant attempted to compel and induce the said Dr. ERF to use his influence regarding pending Bronx Injury County indictments.
The minority would reverse the conviction of defendant for the crime of attempted coercion in the first degree for the reason that the court failed, as requested by defense counsel, to submit the crime of attempted coercion in the second degree to the jury as a lesser included crime (CPL 300.50). We disagree with that view and would affirm the conviction.
Although coercion in the first degree (Penal Law, § 135.65(1)) and coercion in the second degree by threat instilling in the victim a fear of physical injury (Penal Law, § 135.60(1)) are defined in almost identical terms, there is a guideline differentiating such coercion in the first degree and such coercion in the second degree (People v. Eboli, 34 N.Y.2d 281, 288, 357 N.Y.S.2d 435, 439, 313 N.E.2d 746, 749).
The Legislature intended the differentiating feature to be that in the event of coercion by threat instilling in the victim a fear of physical injury, the crime is coercion in the first degree (Penal Law, § 135.65(1)), unless the threat lacks heinousness, in which instance the offense is coercion in the second degree (Eboli, supra, p. 287, 357 N.Y.S.2d p. 438, 313 N.E.2d p. 748; Penal Law § 135.60(1)).
As the Court of Appeals observed in Eboli, supra : Under the related coercion statutes, 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 brain 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 injury, but for some reason it lacks the heinous quality the Legislature associated with such threat.
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