People v. Fullan, 92 N.Y.2d 690 (1998)

Attempted kidnapping in the first degree is a legally cognizable crime when the underlying conduct establishes an attempt to abduct, and the statute imposes strict liability for the aggravating circumstance (death of the victim) that elevates the crime to the first degree.

Summary

Fullan hired individuals to kidnap Alpert, who was owed money by Fullan, with the intent to kill him. The kidnapping attempt resulted in Alpert’s death. Fullan was convicted of, among other things, attempted kidnapping in the first degree and felony murder predicated on that attempted kidnapping. The Appellate Division reversed these convictions, relying on a prior case. The Court of Appeals reversed, holding that attempted kidnapping in the first degree is a cognizable crime because the core crime is the abduction, and the death of the victim is an aggravating circumstance that elevates the crime to first degree, similar to the reasoning in People v. Miller regarding attempted robbery.

Facts

Fullan hired Cepeda and Esquilin to abduct Alpert, a business associate to whom Fullan owed $150,000. The plan was to kidnap Alpert, take him to a specific location, and kill him. During the abduction attempt, Alpert struggled, and the gun of one of the perpetrators discharged, hitting Alpert. Esquilin then shot Alpert twice more, killing him. Fullan, who was present, took promissory notes from Alpert’s body.

Procedural History

Fullan was tried with Esquilin and convicted of three counts of second-degree murder (including two counts of felony murder predicated on attempted kidnapping and robbery), attempted first-degree kidnapping, and first-degree robbery. Esquilin’s conviction was modified by the Appellate Division, which reversed the attempted kidnapping and related felony murder counts based on People v. Campbell. Prior to Fullan’s appeal, the Court of Appeals decided People v. Miller, distinguishing Campbell. The Appellate Division, without mentioning Miller, granted Fullan the same relief as Esquilin. The People appealed to the Court of Appeals. Fullan cross-appealed, seeking a new trial based on an alleged jury instruction error.

Issue(s)

Whether attempted kidnapping in the first degree is a legally cognizable crime in circumstances where the defendant attempts to abduct another person, and that person dies during the abduction.

Holding

Yes, because the core crime is the abduction, and the death of the victim is an aggravating circumstance which elevates the severity of the crime to first degree.

Court’s Reasoning

The Court of Appeals reasoned that the construction of Penal Law § 135.25(3), which defines first-degree kidnapping, parallels the interpretation given to Penal Law § 160.15 in People v. Miller regarding robbery. The court stated, “[t]he core crime here is undeniably the abduction of another person. It is that to which the culpable mental state adheres. Thus, the conduct tending to effect the abduction constitutes the attempt. The death of the victim need not be intended; that additional attribute is the strict liability aggravating circumstance which elevates the severity of the already egregious crime of kidnapping to first degree.” The court found the logic of Miller controlling and held that attempted kidnapping in the first degree qualifies as a cognizable crime. The court distinguished this case from People v. Campbell, similar to how Miller distinguished itself from Campbell. The court stated, “[t]he logic and rationale of Miller (supra), thus, ineluctably control, and dictate this Court’s further conclusion that attempted kidnapping in the first degree qualifies as a cognizable crime in these circumstances.”