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Bronx Childrens Hospital, Bronx County…cont

There can be no doubt that the threat was heinous in giving great offense (Webster’s International Dictionary, 2d ed.) and was gravely reprehensible (American College Dictionary). Defendant threatened to kill Dr. ERF who immediately notified the law enforcement authorities. There is no doubt that we are indeed to be concerned with the words used by defendant in determining whether a threat was heinous. But more importantly, we are concerned with the effect of the threat upon the state of mind of the victim. To what extent, then, did the defendant’s words instill a fear in the victim?

Dr. ERF testified that when the threat to kill was made to him, he became “very frightened”. There is no reasonable view of the evidence which in any way would support the conclusion that complainant’s fear of being killed was lessened so as to dilute the heinous quality of defendant’s threat, nor is there any reasonable view of the evidence to show that defendant did not intend that consequence (People v. Johnson, 39 N.Y.2d 364, 384 N.Y.S.2d 108, 348 N.E.2d 564; People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551; see also, People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410).
We should not consider defendant’s further claim that submission of the crime of attempted coercion in the second degree was warranted on the theory that the evidence showed a second threat, to expose Dr. ERF’s alleged complicity in a check-cashing fraud. This alleged threat is nowhere charged in the indictment. Apparently, the District Attorney chose not to indict defendant for the second threat, which he might have done under the statute defining coercion in the second degree (Penal Law, ยง 135.60(4)(5)).

In any event this threat to expose complicity in a fraudulent scheme could not be considered a lesser included offense embraced in attempted coercion in the first degree as charged in this indictment (CPL 1.20(37)). Obviously, a threat to expose complicity in a fraudulent scheme is not an integral component of a threat to do physical injury.

Accordingly, the judgment of the Supreme Court, Bronx County, rendered February 13, 1975, convicting defendant, upon a jury verdict, of attempted coercion in the first degree, and sentencing him to four months imprisonment, should be affirmed, and the case remitted to the Supreme Court, Bronx County, for further dog bite proceedings pursuant to subdivision 5, section 460.50 of the Criminal Procedure Law.

Accordingly, Judgment, Supreme Court, Bronx County, rendered on February 13, 1975, affirmed. The case is remitted to the Supreme Court, Bronx County, for further proceedings pursuant to subdivision 5, section 460.50 of the Criminal Procedure Law.

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