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Shirley A. Gorman, for appellant.
Lawrence Friedman, for respondent.
MEMORANDUM:
The order of the Appellate Division should
be affirmed.
On October 15, 1992, defendant was arrested
and charged with rape in the first degree. While in custody at the
stationhouse subsequent to his arrest, defendant fled. He was apprehended
later that day, charged with escape in the first degree and arraigned on
the rape charge. After the arraignment, the presiding judge requested
that the court clerk prepare a securing order. Bail was set at $10,000,
which defendant was unable to post, and he was subsequently incarcerated
in the county jail. The next day, defendant was returned to court
for arraignment on the escape charge. Following this arraignment,
defendant was again returned to jail. On November 25, 1992, defendant
was transported from jail to court for a conference with his attorney.
After the conference, defendant could not be located. Not until later
that day was defendant taken back into custody.
A grand jury returned an indictment on December
18, 1992 charging defendant with rape in the third degree (count one) and
two counts of escape in the first degree (count two relating to the October
15 escape, count three to the November 25 escape). A trial on the
indictment ensued, and, at defendant's request, the crime of escape in
the second degree was submitted to the jury as a lesser included offense
of escape in the first degree as charged under count two. The jury
acquitted defendant of rape and convicted him of escape in the second degree
under count two and of escape in the first degree under count three.
Defendant was sentenced to a minimum term of 1-1/3 years to a maximum term
of 4 years for the escape in the second degree charge under count two and
a minimum term of 1-1/2 years to a maximum term of 4-1/2 years on the escape
in the first degree charge under count three, both sentences to run concurrently.
Defendant's conviction was upheld on appeal,
over a two Justice dissent (see, People v Richardson, 216 AD2d 915).
One of the dissenting Justices granted defendant leave to appeal to this
Court. On this appeal, defendant maintains that the Appellate Division
erred in holding that (1) he waived any objection to the submission of
the lesser included offense of escape in the second degree under count
two of the indictment and (2) the evidence was sufficient to convict him
of escape in either the first or second degrees.
Defendant argues that the trial court improperly
submitted the lesser included offense of escape in the second degree to
the jury because the People failed to prove that when he escaped on October
15, 1992 he was under arrest for a class C, D or E felony. However,
by affirmatively requesting that the trial court submit the lesser charge
to the jury, defendant waived his right to challenge the submission of
the lesser charge on appeal (see, People v Ford, 62 NY2d 275, 283).
Defense counsel's objection to the charge was addressed solely to the wording
of the charge and was therefore insufficient to revoke this waiver.
Defendant further contends that the evidence
was insufficient to convict him of escape in the first degree because the
People failed to produce the securing order pursuant to which
defendant was in custody on November 25, 1992. Production of
the securing order is not, however, necessary to establish this charge.
The trial testimony of the court clerk, who indicated that she was directed
by the judge to prepare the securing order after defendant's arraignment
on the rape charge, together with the testimony of the investigator who
was present at the arraignment, relating that the judge set bail and signed
a securing order, establishes that defendant was in custody pursuant to
court order (see, CPLR 4543).
Defendant's other arguments are either unpreserved
or devoid of merit.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided October 17, 1996