People v. Tyler

— Appeal from a judgment of the County Court of Sullivan County (Scheinman, J.), rendered March 3,1981, upon a verdict convicting defendant of the crimes of robbery in the third degree and unlawful imprisonment in the second degree. On May 2,1980, Mrs. Ruth King was attending a conference at the Concord Hotel in Sullivan County as a guest speaker. When the conference ended around noon, Mrs. King was informed by defendant, a hotel porter, that her materials would have to be removed from the conference room. Defendant, Mrs. King and another woman proceeded to pack the materials into boxes, and defendant and Mrs. King brought the materials to her hotel room. At this point, the stories of defendant and Mrs. King diverge. Mrs. King claims she specifically ordered defendant to remain outside the room while she went to get the tip money. Retrieving her purse from the closet, she was forcibly *1034grabbed by defendant, who pushed her against the wall, knocked off her glasses and gagged her mouth with his hand. Mrs. King bit defendant’s finger, causing it to bleed. When he removed his hand from her mouth, she attempted to convince him to let her go, and eventually offered him money. While still being held by defendant, she picked up her pocketbook and offered him all her cash. When defendant said, “Is this all you have?”, Mrs. King started to sign travelers checks for him. Defendant took only some of the travelers checks, saying that was enough and that “I wouldn’t usually do such a thing, take your money, but my daughter is sick in the hospital and I need the money for my daughter.” He also insisted upon Mrs. King’s name and address, which she wrote on a piece of paper and gave to him. He then left the room, and Mrs. King called a friend, who was also attending the conference, for help, and she in turn called the hotel authorities. Defendant was questioned and produced the paper with Mrs. King’s name and address on it, and the checks, which he had put into his sock. He also had a visible and fresh laceration on his finger. Defendant initially denied being in Mrs. King’s room that afternoon, and stated that he had found the paper with the name and address on it. Later, upon further questioning, defendant stated that he may have helped her bring materials to her room that afternoon, but that there had been no incident. Eventually, defendant gave a statement saying that when he brought the box into Mrs. King’s room, she closed the door behind him and stated that she wanted to have sex with him and that she had money. He asserted that she stuffed checks into his pocket and when he tried to get away, she bit his finger. He also stated that he intended to give the checks to his boss. Defendant was arrested and indicted for the following crimes: (1) burglary in the third degree [entering unlawfully with intent to commit sexual abuse]; (2) a second count of burglary in the third degree [remaining unlawfully with intent to commit larceny]; (3) robbery in the third degree; (4) grand larceny in the first degree; and (5) unlawful imprisonment in the second degree. After a jury trial, defendant was convicted of robbery in the third degree and unlawful imprisonment in the second degree. He was acquitted of both counts of burglary, and received a trial order of dismissal on the grand larceny count. Defendant’s first argument is that the record is barren of any evidence of his intent to obtain money through use or threatened use of force. This argument is without merit. The evidence indicates that the jury could have determined that at the time of defendant’s use of physical force he intended to use this force for the purpose of obtaining money. Indeed, at the time he obtained the money, he was still restraining Mrs. King’s freedom of movement. Noting that the jury found him guilty of unlawful imprisonment and robbery, but not guilty of burglary, defendant next contends that the verdicts were inconsistent. In determining whether jury verdicts are repugnant, we are instructed to look to the record “only to review the jury charge so as to ascertain what essential elements were described by the trial court; then, the assertedly inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered [citation omitted]” (People v Tucker, 55 NY2d 1, 7). Here, the various crimes have different elements. Most notably, an element of the burglary charges (that defendant knowingly entered or remained unlawfully) is not an element of the other charges. Finally, defendant argues that certain jury instructions were erroneous. Defendant, however, failed to object to these instructions at trial. Consequently, that issue is not preserved (People v Tucker, supra, p 9; People v Thomas, 50 NY2d 467). Judgment affirmed. Kane, J. P., Main, Weiss and Levine, JJ., concur.