It was in the afternoon of July 17, 1973, the female complainant in this case entered the elevator at the first floor of her apartment building. She had a cast on her broken foot and was using crutches. The 30-year old male defendant was already on the elevator and, although the complainant pressed the button for an upper floor, on which her apartment was located, the elevator descended to the basement. The doors opened and the defendant turned to face the complainant with a small knife in his hand. He told her, by the use of an indecent phrase, that he wanted her to submit to sex with him. She refused and he then demanded that she give him money and she said she did not have any. She retained her composure and protected herself from the defendant by her very resolve not to comply with anything he asked. While this was happening the elevator door closed and the elevator ascended to the first floor, at which time the defendant ran away.
He was subsequently arrested, indicted by the Grand Jury and tried. On October 26, 1973, he was convicted by the jury of the crimes of Attempted Robbery in the First Degree, Attempted Grand Larceny in the Third Degree and Possession of a Weapon as a Misdemeanor, and was sentenced to a minimum of four years to a maximum of twelve on the attempted robbery, first degree count. Defendant later moved for the dismissal of the criminal charges and the striking of the imposition of the minimum 4 year term of imprisonment on the Attempted Robbery count. He claims further that the Trial Court made certain inappropriate remarks showing its hostility against him.
Upon consideration of the facts and circumstances, the Supreme Court ruled that it was an abuse of discretion to impose a minimum 4 year term of imprisonment on the Attempted Robbery charge. The court noted that while the felony was serious, nevertheless, imposition of the 12 year maximum term gives adequate scope of punishment.
The Supreme Court also noted that the District Attorney, in his recommendation, emphasized that the sentence was based solely upon the facts and circumstances of this case and not upon defendant’s prior record. Although defendant’s attempt at committing a burglary in the close confines of an elevator, while holding in hand a dangerous weapon, i.e., a knife, undoubtedly instilled fear in the complainant, nevertheless, the defendant did not touch, molest, or in any manner injure the victim, and ultimately, defendant fled when his demands were refused.
As to the inappropriate remarks allegedly made by the Trial Court, the Supreme Court noted that the Trial Court subsequently apologized for the remarks. Accordingly, since it does not appear that the Court in imposing sentence acted out of hostility or prejudice toward the defendant, and as noted above, the imposition of the maximum 12 year term on the Attempted Robbery count was in any event appropriate; the Supreme Court did not deem it necessary to vacate the sentence in its entirety. Hence, the decision of the Trial Court was ordered modified on the law and in the exercise of discretion to the extent of (1) reversing the conviction for Attempted Grand Larceny in the Third Degree, and dismissing such count in the indictment and (2) striking the imposition of the minimum 4 year term of imprisonment on the Attempted Robbery count.
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