152 A.D.2d 97 | N.Y. App. Div. | 1989
OPINION OF THE COURT
In June 1987 the 27-year-old male victim in this case, Hirokai Murai, placed an ad for a roommate in the Village Voice. Shortly thereafter, after responding to the ad, defendants moved into Murai’s East 19th Street apartment in the Borough of Manhattan and together occupied the living room as their sleeping quarters. The July rent check tendered by
Following a jury trial, defendants were convicted of the crime of kidnapping in the first degree under the following pertinent sections of the statute (Penal Law § 135.25).
"A person is guilty of kidnapping in the first degree when he abducts another person and when * * *
"2. He restrains the person abducted for a period of more than twelve hours with intent to * * *
"(b) Accomplish or advance the commission of a felony”. Penal Law § 135.00 (2) as pertinent here defines abduct as follows: " 'Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found”.
On this appeal defendants contend that their kidnapping convictions should be vacated because this statutory reference to a place where the victim "is not likely to be found” is either constitutionally void for vagueness or, in the alternative, that Murai’s apartment falls outside the statutory definition as a matter of law. Defendants never raised these claims either by motion addressed to the indictment or any objection made to the trial court, and therefore they have not been preserved for appellate review (People v Iannelli, 69 NY2d 684, cert denied 482 US 914). Because an alleged error is assertedly of constitutional dimension does not create an exception to this rule (see, People v Thomas, 50 NY2d 467, 473).
Nor do we find this statutory language impermissibly vague. In People v Nelson (69 NY2d 302), the Court of Appeals
The same considerations apply to the facts before us in this case, since the proscribed conduct, in order to constitute the crime, must be coupled with restraint of the victim for over a 12-hour period. As was stated in Quintard Assocs. v New York State Liq. Auth. (57 AD2d 462, 465, mot to dismiss appeal granted 42 NY2d 973): "The void-for-vagueness doctrine embodies a 'rough idea of fairness’ (Colten v Kentucky, 407 US 104, 110) and the most common standard by which the sufficiency of statute is measured when attacked for vagueness is that it must not be so drawn that men of common intelligence must necessarily guess at what conduct is prohibited (Broad-rick v Oklahoma, 413 US 601, 607; People v Lang, 36 NY2d 366, 369, supra; People v Byron, 17 NY2d 64, 67, supra). ”
The statutory reference here to a place where a victim is not likely to be found passes constitutional muster under this test. (See, Kovacs v Cooper, 336 US 77, which upheld an antinoise ordinance which prohibited "loud and raucous noises”.)
Defendants’ alternative contention assumes clarity in the statute, and submits that the apartment of an urban dweller is, as a matter of law, a place where he is most (rather than less) likely to be found. This argument, also, has not been preserved by any motion to dismiss or request to charge which might have focused the jury’s attention upon this particular element of the offense, which in fact was charged by the court without objection by the defense as to form or substance. This omission forecloses our consideration of the issue now raised for the first time (see, People v Dekle, 56 NY2d 835).
We have examined the other contentions of defendants and find them without merit.
Accordingly, the judgment, Supreme Court, New York County (Franklin R. Weissberg, J., at trial and sentence; John A. K. Bradley, J., at Clayton motion), rendered May 24, 1988, which convicted appellant Ehinger, after a jury trial, of kidnapping in the first degree, robbery in the first and second degrees and grand larceny in the third degree, and sentenced him to concurrent terms of 20 years to life, 7 to 21 years, 4 to 12 years, and 1 to 3 years, respectively; and judgment of said court (Franklin R. Weissberg, J.), rendered on May 24, 1988, which convicted appellant Marel of kidnapping in the first degree and grand larceny in the third degree and sentenced her to concurrent terms of 16 years to life and 1 to 3 years, respectively, are affirmed.
Murphy, P. J., Kupferman, Kassal and Smith, JJ., concur.
Judgments, Supreme Court, New York County, rendered on May 24, 1988, unanimously affirmed.