People v. Fogler

184 A.D.2d 270, 585 N.Y.S.2d 26, 1992 N.Y. App. Div. LEXIS 7800

Opinion

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered February 6, 1991, convicting defendant after jury trial of unlawful imprisonment in the first degree (Penal Law § 135.10) and endangering the welfare of a child (Penal Law § 260.10 [1]), and sentencing him as a second felony offender, to concurrent terms of imprisonment of 1% to 3 Vi years, and a definite one year term, respectively, unanimously affirmed.

After an exchange of words between defendant and the ten year old complainant, a third party picked up the child and carried him over to defendant. Defendant held the complainant by the collar, produced a knife, and held it about a foot away from the complainant’s chest, telling him "take it out, I’m going to cut it off.” The child’s mother called police. Defendant told responding police that he would never have hurt the child and was only playing around. Defendant’s witness testified that the complainant was never restrained, that defendant only stood in front of him, and that defendant never pulled a knife. Viewing the evidence in the light most favorable to the People (People v Malizia, 62 NY2d 755, cert denied 469 US 932) and giving due deference to the jury’s findings of credibility, defendant’s guilt was proved beyond a reasonable doubt. The evidence established that defendant’s conduct exposed complainant to a risk of serious physical injury as well as establishing that defendant detained the complainant. Nor do we find any basis to disturb the exercise of discretion by the sentencing court. Concur — Carro, J. P., Milonas, Ellerin and Ross, JJ.