
    The People of the State of New York, Respondent, v. C. James Lombardi, Appellant.
    Argued April 20, 1967;
    decided July 7, 1967.
    
      
      Irving Anolik for appellant.
    I. Evidence adduced at trial was insufficient as a matter of law to establish defendant’s guilt of any of the crimes charged in the indictment. There was insufficient corroboration to prove that kidnapping, attempted rape or assault second degree with the intent to commit kidnapping and rape had actually been perpetrated. II. The court itself charged the jury that no “ classic” kidnapping had occurred. Indeed no kidnapping at all was committed since the asportation, if it occurred at all, was solely for the purpose of committing or attempting to commit a sexual assault and obviously not ‘ kidnapping ”. There were no demands for ransom and no protracted or unnecessary detention of any of the victims. (People v. Levy, 15 N Y 2d 159; People v. Florio, 301 N. Y. 46; People v. Black, 18 A D 2d 719; People v. English, 16 N Y 2d 719; People v. Peetz, 7 N Y 2d 147; People v. Nitzberg, 289 N. Y. 523.) III. Certain incriminating statements which the authorities extracted from Lombardi following an unlawful arrest were inadmissible since Lombardi was subjected to massive interrogation by skillful police officers and insidiously tricked by a ruse of questioning him first concerning the alleged unsolved ‘ murders ” of two persons.- (People v. English, 16 N Y 2d 719; Miranda v. Arizona, 384 U. S. 436; United States v. Bozza, 365 F. 2d 206; Krulewitch v. United States, 336 U. S. 440; Townsend v. Sain, 372 U. S. 293; Spano v. New York, 360 U. S. 315; Leyra v. Denno, 347 U. S. 556; Turner v. Pennsylvania, 338 U. S. 62; People v. Everett, 10 N Y 2d 500; People v. Caserino, 16 N Y 2d 255; People v. Donovan, 13 N Y 2d 148; People v. Rodriguez, 11 N Y 2d 279; People v. Robinson, 13 N Y 2d 296; Killough v. United States, 315 F. 2d 241; People v. Lane, 10 N Y 2d 347; Mallory v. United States, 354 U. S. 449; Jackson v. Denno, 378 U. S. 368; Mapp v. Ohio, 367 U. S. 643.) IV. Defendant was denied a fair trial by the highly inflammatory language employed by the prosecutor, particularly in summation, where not only was Lombardi villified in the most onerous terms but a calculated program of character assassination of defense counsel was conducted as well. (People v. Mleczko, 298 N. Y. 153; People v. Savvides, 1 N Y 2d 554; People v. Fielding, 158 N. Y. 542; Berger v. United States, 295 U. S. 78; Weil v. Weil, 283 App. Div. 33.) V. The uncorroborated statements by the prosecutor on sentence violated Lombardi’s rights under section 6 of article I of the New York Constitution and the Fourteenth Amendment to the United States Constitution. (Williams v. New York, 337 U. S. 241; Pointer v. Texas, 380 U. S. 400; Drehmen v. Stifle, 8 Wall. [75 U. S.] 595; United States v. Lovett, 328 U. S. 303; Cummings v. Missouri, 4 Wall. [71 U. S.] 277.) VI. The indictment did not charge a common scheme and plan, nor did the events herein occur at about the same time, nor was it permissible in this type of case (assault with intent to rape, as well as rape) to allow the prosecutor to show similar acts with other females. Yet, notwithstanding these facts, the court, over objection, permitted the prosecutor to rest his case on a common scheme and plan thereby irreparably prejudicing' defendant. (People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Jackson, 18 N Y 2d 516; People v. Allen, 258 App. Div. 854, 282 N. Y. 511; People v. Rosenthal, 289 N. Y. 482; People v. Berrios, 3 A D 2d 382.) VII. The proof of guilt of defendant was insufficient as a matter of law. (People v. Weiss, 290 N. Y. 160; People v. Weltering, 275 N. Y. 51.)
    
      Frank S. Hogan, District Attorney (Alan F. Scribner, Michael Juviler, Raymond S. Hack and Milton Stein of counsel), for respondent.
    I. The guilt of defendant was proved beyond a reasonable doubt. (People v. Levy, 15 N Y 2d 159; People v. Florio, 301 N. Y. 46; People v. Small, 274 N. Y. 551; People v. Hope, 257 N. Y. 147; People v. Black, 18 A D 2d 719.) II. The court properly charged the jury as to “ common scheme or plan”. (People v. Luciano, 277 N. Y. 348; People v. Jack, 10 A D 2d 336, 8 N Y 2d 857; People v. Duffy, 212 N. Y. 57; People v. Molineux, 168 N. Y. 264; People v. Formato, 286 App. Div. 357, 309 N. Y. 979; Hope v. People, 83 N. Y. 418; People v. Marrin, 205 N. Y. 275; People v. Dolan, 186 N. Y. 4; People v. 
      Rutman, 260 App. Div. 784; United States v. Wall, 225 F. 2d 905.) III. The confession was properly admitted into evidence. (Rent v. United States, 209 F. 2d 893; People v. Coffey, 12 N Y 2d 443; United States v. Fay, 240 F. Supp. 591; United States v. Robinson, 325 F. 2d 391; People v. Cassese, 47 Misc 2d 1031; People v. Olszowy, 47 Misc 2d 859; People v. Savino, 20 A D 2d 901, 15 N Y 2d 778; People v. Caserino, 16 N Y 2d 255.) IV. The court’s instructions regarding the confession were proper. (People v. English, 16 N Y 2d 719; People v. Molineux, 168 N. Y. 264.) V. The conduct of the prosecutor was proper. (People v. Marks, 6 N Y 2d 67; People v. Castillo, 16 A D 2d 235, 12 N Y 2d 732; People v. Steinhardt, 9 N Y 2d 267; People v. Milks, 55 App. Div. 372; People v. Rosa, 14 A D 2d 741; United States v. Stromberg, 268 F. 2d 256; Williams v. New York, 337 U. S. 241; People v. Dusablon, 16 N Y 2d 9.)
   Bergan, J.

Defendant has been convicted of three charges of kidnapping; one of attempted rape, first degree; three charges of assault, second degree, and one charge of attempted assault, second degree. He was sentenced to 40 years to life on one of the kidnapping counts; and to lesser, concurrent terms, on the other charges.

A similarity exists between the crimes of which he has been convicted, but each involved different persons and entirely different acts and were separated by rather long periods of time from November, 1963 to July, 1964. The indictment charged the crimes separately as different acts, without pleading either they were “connected together ” or that they were part of a common scheme or plan (Code Crim. Pro., § 279).

Defendant was a pharmacist and travel agent in Manhattan. On three occasions, it has been established, he hired young women to work in his travel agency. Each was induced by defendant to agree to go to a business party or promotional social affair, two of them to be in Long Island.

Before starting on these trips defendant induced each of the young women to take pills which he had told them were ‘ ‘ nail-hardening pills ” but which, in fact contained a combination of barbiturates which defendant had prepared. The women wore induced to take the pills on the representation their reaction would be helpful to defendant’s business.

The type of barbiturates which, had been given to each of the young1 women would tend within 20 to 30 minutes to put one to sleep; to blunt one’s awareness of environment; to induce light-headedness and dizziness; and to make one unstable from the standpoint of muscular co-ordination.

Expert opinion disclosed the drugs induced a feeling of inability to resist or use full muscular strength and such a person would be “ unable rationally and willfully to cope with a situation ’ ’.

It has been established that defendant drove the three young women, in this state of physical and mental disability, to a motel in Queens where in one instance, the jury has found, he attempted sexual intercourse and in two other instances made sexual advances short of attempted intercourse. These acts form the bases for the convictions of attempted rape and of assault. The proof is that following these acts, the women were returned to their homes by the defendant.

The attempted assault charge is based on giving pills to a policewoman assigned to investigate the case with the suggestion she consume them. Having obtained them, the policewoman ran out of the store. Defendant’s arrest followed at once. These pills were analyzed and their contents established on the trial. The physical reactions of the other women to the pills they had taken were medically consistent with the effect of the pills seized by the policewoman as shown by analysis.

The asportation of the three young women from Manhattan to Queens, aided in part, at least, by the drug, and the physical domination of them in a motel made possible by the drug, comes literally within the terms of the kidnapping statute (Penal Law, § 1250, subd. 1, as it read in 1964).

But the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.

Asportation in the present case, for example, played no significant role in the crimes. Had defendant drugged his victims and taken them to a room in back of the pharmacy and there attempted to rape them or make sexual advances, the crimes would appear more clearly to "he attempted rape or assault and essentially something other than kidpnapping.

The confinement resulting from the effect of the drug would, however, in that situation also fall within the literal terms of the kidnapping statute. One might suppose that taking his drugged victims in daylight to a public motel, thus inviting the possible risk of inquiry, was a less certain way of achieving his purpose than taking them somewhere in the pharmacy premises.

The kidnapping question in this ease is largely answered by People v. Levy (15 N Y 2d 159), which expressly overruled People v. Florio (301 N. Y. 46). The latter case was not unlike the present one except there force was used rather than drugs and rape was consummated rather than attempted after the victim had been taken from Manhattan to Queens.

It was held in Levy that under the kidnapping statute then in effect (Penal Law, former § 1250), which also; was in effect for the present crimes, the detention or asportation of a victim for a relatively short time as an incident to robbery should not normally be prosecuted as- kidnapping, (See, also, Chatwin v. United States, 326 U. S. 455.)

The Legislature has undertaken to bring more certainty than the court was able to achieve in Levy, to the problem of when confinement and restraint are significant enough by themselves to warrant a kidnapping prosecution. This is achieved by prescribing a definite time period of detention in eases other than the classic crime of kidnapping for ransom and its equivalents (Revised Penal Law, § 135.25, L. 1965, ch, 1030, eff. Sept. 1, 1967).

In such other situations than classic kidnapping, e.g., the restraint of an abducted person to violate or abuse him sexually, detention for more than 12 hours is treated as kidnapping in the first degree (§ 135.25, subd. 2, par. [b]).

But the rule laid down in Levy and not the new statute effective next September governs this present case. Although two of the defendant’s victims seem to have been with defendant in total time long enough to meet the test of the new statute if it were applicable, this question was not of significance at the trial and was not factually resolved. In any case, it is uncertain, both from the viewpoint of the time when the drug took effect and when it wore off as to the actual period in which it was an instrument of restraint.

The conviction for kidnapping, therefore, should be reversed and the kidnapping counts of the indictment dismissed.

Moreover, there should be a new trial as to the attempted rape and assault convictions because of the prejudicial and inflammatory comments of the prosecutor both during the trial and in summation.

Casting his language in negative rhetorical form the prosecutor went to excessive lengths in arguing to the jury that they were “ not here to determine ” if defendant’s acts “ were damnable, diabolical, destructive, death dealing” and whether the defense ‘ ‘ is born of desperation and despair, filled with deceit, devoid of decency, devoid of truth, foul and vile ”. He continued : 1 ‘ And those admissions, so to speak, are the ribbon on the box which establishes the guilt of this defendant of damnable diabolical acts.”

At another point in summation, the prosecutor argued the victims had aided the police in investigation “ so that the community could be safeguarded, so justice could be done, and so that their cry could be heard by a jury in this court as they said Avenge me, avenge me ’ ’.

Personal attack by the prosecutor on counsel for defense, Herbert Zelenko, was carried to undue lengths. In summation, the prosecutor referred to “ the great defender of civil liberties Herbert Zelenko ”. At another point in summation he argued that Mr. Zelenko had used time and time again the term ‘ ‘ civil rights and civil liberties” and added “How he tossed that phrase so loosely over his tongue, attempting to appeal to the prejudice of each and every one of you ”.

Repeatedly in his summation the prosecutor referred to defense counsel as “ This man, this defender of civil liberties ” and “ the man who speaks about civil liberties ” and the great defender of civil liberties, Herbert Zelenko ”. At another point in summation he asked whether the jury rememberd the ‘ ‘ way ’ ’ in which defense counsel had asked a question, and commented: ‘ ‘ It came out foul. ’ ’

The background of these attacks on defense counsel before the jury is to be seen in some comments by the prosecutor on the record before the Judge, not before the jury, which, although not prejudical in themselves as to the jury, suggest the attacks were more than heated advocacy.

At one such point the prosecutor said to the court: “ I state for the record that Mr. Zelenko is a dishonest man.” Mr. Zelenko, having recently been defeated for re-election to Congress, the prosecutor at another point in the record said to the Judge: “ I do not want to comment on what I think of defense counsel at this moment. The electorate has already commented. ’ ’ These attacks on defense counsel exceeded fair limits of advocacy and and were prejudicial to defendant as a matter of law.

Since there is to be a new trial, the jury should be instructed that the crimes charged, although properly joined in the same indictment under section 279 of the Code of Criminal Procedure, must, on this record, be separately considered each on its own merits.

The judgment should be reversed by dismissing the charges of kidnapping and by directing a new trial as to the charges of attempted rape and assault.

Burke, J.

(dissenting). I would affirm defendant’s convictions on the three kidnapping counts, one count of first degree attempted rape and three counts of second degree assault. In my opinion, this court’s decision in People v. Levy (15 N Y 2d 159 [1965]) does not preclude an affirmance of defendant’s kidnapping convictions, nor does the allegedly inflammatory summation of the prosecutor constitute reversible error requiring a new trial on the rape and assault convictions.

In the Levy case, wherein we ostensibly overruled People v. Florio (301 N. Y. 46 [1950]), the two victims had been accosted at gunpoint by two armed men, one of whom usurped control of their car and proceeded to transport them about the city while the other effected a robbery of their persons. “ The total length of the drive was 27 city blocks; the time 20 minutes.” (15 N Y 2d, supra, p. 163.) This, the court concluded, was “ essentially robbery and not kidnapping ” (p. 165). In reaching this decision, it was necessary to overrule at least the rationale of Florio where Judge Conway had spoken in broad general language about the crime of kidnapping: “ ‘ The confinement and detention in the automobile for a short time, coupled with the intent, brings the case wiiliin the purview of the statute.’ ” (301 N. Y., supra, p. 50; emphasis in original.)

Nevertheless, it is by no means certain that we were overruling the result reached in Florio and Judge Bebgau, speaking for the Levy majority, recognized that no hard and fast rule could be defined: There may well be situations in which actual kidnapping in this sense can be established in conjunction with other crimes where there has been a confinement or restraint amounting to kidnapping to consummate the other crime.” (15 N Y 2d, supra, p. 165,) Such a situation is presented on this appeal, a situation which does not fall within the Levy de minimis rule.

Herein the defendant Lombardi, on three separate occasions, doped, transported, detained and assaulted or attempted to rape three different victims; the periods of detention on the three occasions ranged from 10 to 15 hours; and the distance travelled far exceeded that in Levy. While it would be most unwise for this court to become involved with the endless factors of time and distance in this question of asportation, certainly kidnapping “ in the conventional sense ” includes the substantial asportation of the person detained, in time and/or distance, not essential to the underlying crime intended. (See Revised Penal Law, § 135.25, eff. Sept, 1, 1967.) A kidnapping invariably has its basis in another crime, whether it be extortion, robbery, rape, etc,, and in this case Lombardi transported and detained his doped female victims for the heinous and criminal purpose of sexual assault and gratification, transported them over a substantial distance and detained them for a substantial time. These elements clearly distinguish this case from Levy and render inapplicable the Levy de minimis rule. Accordingly, in every sense, conventional and otherwise, Lombardi was guilty of kidnapping, as so found by the jury pursuant to an extremely fair charge by the trial court, and his convictions in this regard should be affirmed.

As to the court’s other ground for reversal, necessitating a new trial on the attempted rape and assault charges, I find it quite unpersuasive. Most assuredly the prosecutor ranged far and wide in his summation to the jury, employing such terms as “ damnable,” “ diabolical,” “ destructive,” “ foul,” “ vile,” “ filled with deceit,” and “ devoid of decency ” in referring to the defendant and his reprehensible conduct. In a case such as this, however, fiercely tried on both sides in our traditional form of adversary proceeding, I would not consider such language unduly prejudicial to the defendant’s rights, especially where the evidence of guilt is overwhelmingly convincing beyond peradventure of a doubt. (Cf. People v. Kingston, 8 N Y 2d. 384 [1960].)

The judgment of conviction for kidnapping, assault and attempted rape should be affirmed in all respects.

Chief Judge Fuld and Judges Van Voobhis and Keating concur with Judge Bregan; Judge Burke dissents and votes to affirm in an opinion in which Judges Scileppi and Breitel concur.

Judgment reversed, the counts charging kidnapping dismissed and a new trial ordered as to the remaining counts of the indictment.  