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JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED.

The Fourth Department reversed defendant’s conviction because a juror who expressed doubt she could be fair because of her close ties to law enforcement never stated she could put aside her bias toward police officers:

Although the prospective juror responded affirmatively to the court’s question whether she could base her decision in the case on what she heard and saw in the courtroom and the general question whether she could be fair and impartial … , she did not provide an “unequivocal assurance that . . . [she could] set aside [her] bias” toward police officers who would testify at the trial … . People v Griffin, 2016 NY Slip Op 08701, 4th Dept 12-23-16

CRIMINAL LAW (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW,  (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)

FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA.

The Fourth Department granted defendant’s motion to withdraw his guilty plea based upon the sentencing court’s failure to completely explain the possible sentences and the discrepancy between the written plea agreement and the court’s oral explanation. The Fourth Department further found that the corrections made to the plea agreement one week after the guilty did not cure the problem. Defendant was not afforded the opportunity to withdraw his plea:

Here, although the court during defendant’s arraignment articulated the terms of a plea offer that included the alternative sentences defendant would receive if he was or was not successful in the Judicial Diversion Program, the court did not state those alternative sentences on the record during the plea colloquy. Specifically, although the court stated during the plea colloquy that defendant would receive a “cap of felony probation if successful[,]” the court did not articulate the sentence that defendant would receive if he was unsuccessful.

Furthermore, the Judicial Diversion Program Contract (Contract) signed by defendant on the date he pleaded guilty contradicts the terms of the plea agreement set forth in the transcript of defendant’s arraignment. …

The Contract was amended and re-signed by defendant one week after defendant’s guilty plea was taken, and the Court of Appeals has made clear that the court must inform the defendant of the direct consequences of a plea “[p]rior to accepting a guilty plea”… . People v Streber, 2016 NY Slip Op 08683, 4th Dept 12-23-16

CRIMINAL LAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/SENTENCING (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the street patdown search of defendant was not justified and the cocaine found in the search should have been suppressed. Defendant was a passenger in a car which was legally stopped by the police. Defendant was asked to step out of the car, which was deemed a proper request. Defendant initially refused to get out of the car and demanded an explanation for the request. At that point defendant was seized, pulled from the car, placed face down, hand-cuffed and the patdown search was conducted:

Based upon the evidence at the suppression hearing, we conclude that “the officers did not have any knowledge of some fact or circumstance that support[ed] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety’ ” … . Defendant’s evident nervousness as the officers approached the vehicle was not an indication of criminality or a threat to officer safety … . Nor was the patdown justified by the fact that the vehicle was in a high crime area … , particularly when the stop occurred on a busy street during rush hour … . Moreover, “there was no suggestion that a weapon was present or that violence was imminent” … . Finally, neither defendant’s initial refusal to exit the vehicle nor his demand for an explanation why he was being asked to exit the vehicle gave rise to a reasonable suspicion that he posed a threat to the officers’ safety … . People v Ford, 2016 NY Slip Op 08631, 4th Dept 12-23-16

CRIMINAL LAW (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SEARCH AND SEIZURE (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SUFPRESSION (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/PATDOWN SEARCH (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)

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UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined cell phone subscriber information contained within a Sprint business record was properly admitted, even though the subscriber information was not verified by Sprint. The subscriber information was not admitted for its truth, but rather as a piece of a puzzle which connected the cell phone to the defendant, Darnell Patterson. An accomplice in the charged robbery, who had been invited into the apartment which was subsequently robbed, received a call from the subject cell phone shortly before masked robbers arrived at the apartment:

… [T]he purpose of the subscriber information was not to prove that “Darnell Patterson,” or even defendant, had activated the prepaid Sprint account, but to show that the account had some connection to defendant — regardless of how tenuous — because such a connection would be helpful to the jury in assessing the reliability of the victim’s identification of defendant as the perpetrator. The evidence was ultimately relevant to the People’s argument to the jury that it was not coincidental that someone — regardless of who — provided pedigree information associated with defendant in activating the cell phone. Under the circumstances of this case, the subscriber information was not admitted for its truth, but for the jury to consider as a piece of the puzzle — along with evidence that the prepaid Sprint account called the same numbers that defendant did in prison, that the date of birth given by defendant when arrested matched that in the subscriber information, that the address given in the subscriber information was associated with defendant in police databases, and that defendant had the name Darnell tattooed on his hand — that gave rise to an inference that defendant was the user of the phone, although perhaps not the subscriber, a subtle but critical distinction for purposes of the evidentiary issue before us. People v Patterson, 2016 NY Slip Op 08582,, CtApp 12-22-16

CRIMINAL LAW (UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY)/EVIDENCE (CRIMINAL LAW, UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (CRIMINAL LAW, UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY)/HEARSAY (CRIMINAL LAW, UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY)/CELL PHONE RECORDS  (CRIMINAL LAW, UNVERIFIED CELL PHONE SUBSCRIBER INFORMATION IN A SPRINT BUSINESS RECORD WAS PROPERLY ADMITTED BECAUSE IT WAS NOT ADMITTED FOR ITS TRUTH, RATHER IT WAS ADMITTED AS A PIECE OF A PUZZLE LINKING THE CELL PHONE TO THE DEFENDANT, WHO WAS OTHERWISE LINKED TO THE ROBBERY)

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AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the resentencing of defendant to the same sentence which was overturned on appeal was not an error and failure to object to the resentence did not constitute ineffective assistance. Defendant was charged with attempted murder, assault and criminal possession of a weapon. Defendant and the victim were wrestling with a gun which discharged and wounded the victim. Defendant was convicted only of criminal possession of a weapon (no evidence of intent). The defendant was sentenced as a persistent violent felony offender to 20 years. During the first sentencing, the judge referred to the impact on the victim. Because defendant had not been convicted of shooting the victim, the appellate division reversed finding the sentence to be based upon evidence improperly considered. The judge imposed the same 20-year sentence upon resentencing. Defense counsel didn’t object:

In this case, the resentencing court provided on-the-record, permissible, and wholly nonvindictive reasons substantiating defendant’s sentence. Those reasons included defendant’s three prior felony convictions, a prior parole violation, and a probation report characterizing defendant as “a significant risk to the safety of the community.” The record therefore does not evince actual reliance on improper factors, or the type of retaliatory, vindictive conduct that a prophylactic presumption is designed to protect against. Because defendant’s resentencing claim fails on its merit, defense counsel cannot be deemed ineffective for declining to assert it. People v Flowers, 2016 NY Slip Op 08580, CtApp 12-22-16

CRIMIINAL LAW (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/SENTENCING AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)

QUESTIONS WHETHER PROSPECTIVE JURORS COULD DISREGARD AN INVOLUNTARY CONFESSION SHOULD HAVE BEEN ALLOWED, CONVICTION REVERSED.

The Court of Appeals, reversing the appellate division (and defendant’s manslaughter conviction), determined defense counsel should have been allowed to question prospective jurors in voir dire about their ability to disregard an involuntary statement attributed to the defendant. At voir dire, the prosecution indicates it was not sure defendant’s statements would be introduced. However, defendant’s inculpatory statements were presented in the People’s direct case, and those statements tended to corroborate eyewitness testimony:

Under the circumstances of this case, the trial court abused its discretion when it entirely precluded questioning on the issue of involuntary confessions and refused to make its own inquiry of the potential jurors on the issue. Defense counsel’s request to question prospective jurors about their ability to follow the law and disregard an involuntary confession went to the heart of determining whether those jurors could be impartial and afford defendant a fair trial. Indeed, defendant, facing the most serious charge of murder, premised his defense at trial on the involuntariness of his inculpatory statements, which effectively corroborated the testimony of the two eyewitnesses whose credibility was strenuously assailed by the defense.

Furthermore, the fact that the prosecution had not determined, by the time of jury selection, whether it would use defendant’s inculpatory statements at trial should not have resulted in precluding any questioning on the issue altogether, by either the court or defense counsel … . Defense counsel here never sought to place the contents of defendant’s statements before the jury. Rather, he sought only to question prospective jurors on their ability to follow and apply the law regarding the prohibited use of an involuntary statement. Moreover, the trial court had other ways to address any potential speculation and prejudice to the prosecution while still safeguarding defendant’s right to adequately voir dire the jury. For instance, the court could have instructed the prospective jurors that it did not yet know whether there were any statements that would come in as evidence, but if there were, it was the law that such statements must be disregarded if the jury found them to be involuntary. People v Miller, 2016 NY Slip Op 08587, CtApp 12-22-16

 

CRIMINAL LAW (QUESTIONS WHETHER PROSPECTIVE JURORS COULD DISREGARD AN INVOLUNTARY CONFESSION SHOULD HAVE BEEN ALLOWED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, QUESTIONS WHETHER PROSPECTIVE JURORS COULD DISREGARD AN INVOLUNTARY CONFESSION SHOULD HAVE BEEN ALLOWED, CONVICTION REVERSED)/VOIR DIRE (CRIMINAL LAW, QUESTIONS WHETHER PROSPECTIVE JURORS COULD DISREGARD AN INVOLUNTARY CONFESSION SHOULD HAVE BEEN ALLOWED, CONVICTION REVERSED)/CONFESSIONS (QUESTIONS WHETHER PROSPECTIVE JURORS COULD DISREGARD AN INVOLUNTARY CONFESSION SHOULD HAVE BEEN ALLOWED, CONVICTION REVERSED)

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SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a concurring opinion, determined skin color is a valid basis for a Batson challenge to a peremptory strike. Here defense counsel challenged the prosecutor’s striking of a dark-colored Indian-American woman. The prosecutor did not provide a non-discriminatory reason for striking her:

Our State Constitution and Civil Rights Law plainly acknowledge that color is a “status that implicates equal protection concerns” … , and therefore a Batson challenge may be based on color. Discrimination on the basis of one’s skin color — or colorism — has been well researched and analyzed, demonstrating that “not all colors (or tones) are equal” … . Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race. Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our State Constitution and Civil Rights Law. Making this distinction is necessary to serve the purpose of Batson, which recognized that discrimination in the selection of jurors violates “a defendant’s right to equal protection because it denies him [or her] the protection that a trial by jury is intended to secure” … . People v Bridgeforth, 2016 NY Slip Op 08586, CtApp 12-22-16

CRIMINAL LAW (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/JURORS (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/BATSON CHALLENGE (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/SKIN COLOR (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)

DENIAL OF DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED.

The Court of Appeals, reversing the appellate division, determined the trial court did not abuse its discretion when it denied defense counsel's for cause challenge to a juror. The court's questioning of the juror, which referenced questions just asked of another juror, was sufficient to ensure the juror would render a verdict based on the evidence and the law:

Under the circumstances of this case — including the trial court's direct reference to the questions it had asked of juror No. 123, which called to juror No. 383's attention her previously stated bias — the trial court did not abuse its discretion by denying defendant's for-cause challenge to the prospective juror based on her subsequent unequivocal assurances of impartiality … . Viewing prospective juror No. 383's statements in totality and in context … , her assurances to the court adequately expressed her ability and willingness to adhere to her obligation to acquit defendant if the evidence required her to do so and established that she would render an impartial verdict untainted by any aforementioned bias or sympathy. “[T]he CPL . . . does not require any particular expurgatory oath or 'talismanic' words” to resolve doubt about a potential juror's ability to be fair… and, here, the trial court had the discretion to deny defendant's for-cause challenge to the prospective juror … . People v Warrington, 2016 NY Slip Op 08584, CtApp 12-22-16

CRIMINAL LAW (DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)/JURORS (CRIMINAL LAW, DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)/FOR CAUSE CHALLENGE (DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)

UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS. 

The Court of Appeals, in a full-fledged opinion by Judge Piggot, over a dissenting opinion, determined the trial judge properly refused to instruct the jury on the lesser included offense of coercion in the second degree. Defendant was charged and convicted of coercion in the first degree. The applicable elements of both the first and second degree offenses were the same in this case. The second degree (misdemeanor) offense is reserved for rare cases where the nature of the coercion does not rise to the level of heinousness warranting a felony conviction (not easily described or discerned):

This Court long ago recognized that the crimes of coercion in the first and second degree “are identical when the coercion is committed by instilling a fear that a person will be physically injured or that property will be damaged” … . While the language of the statutes does not provide guidance on which crime is to be charged, … the legislative history reveals an intention that the felony of “coercion in the first degree be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property.” * * *

… [S]econd-degree coercion should be charged as a lesser included offense only in the “unusual factual situation” in which the coercion by threat of personal or property injury lacks “the heinousness ordinarily associated with this manner of commission of the crime” … . We … left open the possibility that, based on the evidence presented in a given case, a trial court could submit second-degree coercion as a lesser-included offense of coercion in the first degree if the “threatened physical injury is not truly fearsome” … .

This case does not present one of those “unusual factual situations” warranting the lesser included charge … . The People’s evidence showed that defendant coerced his former girlfriend by threatening to drive away her clients, make it impossible for her to conduct business, hurt her physically, and even kill her. Such methods of coercion have the heinous quality contemplated by the first-degree statute, and therefore the second-degree charge was not warranted. People v Finkelstein, 2016 NY Slip Op 08585, CtApp 12-22-16

 

CRIMINAL LAW (UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS)/COERCION (CRIMINAL LAW, UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS)

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