PEOPLE v. GANTZ


104 A.D.2d 692 (1984)

The People of the State of New York, Respondent, v. Richard J. Gantz, Appellant

Appellate Division of the Supreme Court of the State of New York, Third Department.


Defendant, who had escaped from Downstate Correctional Facility in Dutchess County, was given help as a stranded motorist by one Robert Lennon and his wife on a highway en route to their home at Wallkill in Ulster County. He forced admittance into their home by physical abuse and what appeared to be a concealed weapon, and both sodomized and attempted to rape Mrs. Lennon under threat of injury to her husband. He then fled in the Lennons' car taking money, the registration and a driver's license. Defendant later entered the Cossano residence in the Town of Gardiner in Ulster County where, armed with a shotgun, he held the family as hostages, ultimately releasing all save the husband whom he offered to release in exchange for his own freedom. Defendant was thereafter apprehended near the Cossano home. He was convicted after trial of attempted rape, sodomy, robbery and unlawful imprisonment (five counts), all in the first degree, second and third degree burglary, and third degree robbery, and sentenced as a persistent felony offender to 25 years to life imprisonment.

Defendant initially contends that the trial court erred in permitting testimony of his prior convictions for rape and robbery and his escape from prison. He argues that this testimony was not probative of any material element of the People's case and simply served to demonstrate a predisposition toward criminal behavior (see People v Molineux, 168 N.Y. 264). We disagree. Although testimony of uncharged crimes is generally not admissible (see People v Ventimiglia, 52 N.Y.2d 350, 359-360), an exception may be made where a narrative description of the crimes charged necessitates mention of the uncharged criminal conduct, as when the two events are inextricably interwoven (see People v Vails, 43 N.Y.2d 364, 368; People v Willis, 52 A.D.2d 972). Upon this trial, several references were made during the People's case to defendant's escape from prison. Our review shows that the prosecutor complied with the trial court's admonition not to dwell on the escape matter and permitted reference to the escape only to the extent such testimony flowed naturally from the events underlying the indictment. Since the record demonstrates that the subject of the escape was interwoven with the subsequent events involving both the Lennons and Cossanos, we find no fault with the trial court's discretion in admitting this evidence.

Nor do we find undue prejudice in the prosecutor's reference to defendant's previous convictions for rape and robbery. In support of his insanity defense, defendant examined Dr. Augustus F. Kinzel, a psychiatrist, who presented an overview of defendant's mental history, including references to "some kind of robbery" and "some kind of sexual acts", thus "opening the door" to cross-examination on the psychiatrist's awareness of the previous rape and robbery convictions. The question was relevant both as to his credibility and the over-all insanity defense (People v Ventimiglia, supra, p 360; People v Santarelli, 49 N.Y.2d 241; People v Clark, 94 A.D.2d 846, 848).

Defendant's remaining contentions do not require extended discussion. Even assuming that defendant was in custody during the hostage negotiations a review of a transcript of the taped telephone conversations indicates the negotiations were directed toward providing defendant with medication and maintaining the hostages' safety, not to elicit inculpatory statements (see People v Lynes, 49 N.Y.2d 286, 295). Despite the lack of Miranda warnings, the trial court did not err in refusing to suppress these statements, particularly since they occurred during the commission of a crime (see People v Hughes, 59 Misc.2d 303). Defendant's request for an additional five peremptory challenges during voir dire was properly denied (CPL 270.25, subd 2, par [b]; People v Fox, 99 Misc.2d 1061). That a prospective juror was employed as a secretary for the Board of Police Commissioners was not a basis for defendant's challenge for cause (CPL 270.20, subd 1, par [a]). Nor did the trial court's remarks during voir dire prejudice defendant, since the issue of guilt was adequately separated from the court's characterization of the crimes charged. A review of the record shows sufficient evidence to support both the attempted rape and sodomy convictions (People v Clark, supra; People v Grego, 90 A.D.2d 878; People v Green, 80 A.D.2d 995), as well as the convictions for unlawful imprisonment (Penal Law, § 135.10; see People v Byrne, 66 A.D.2d 963, 964-965). Finally, the trial court did not abuse its discretion in refusing to allow defendant to impeach the prosecutor's expert by introducing a decision from an unrelated case concerning the witness's qualifications.

Judgment affirmed.


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