Opinion
June 10, 1998
Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Burglary, 3rd Degree.
Present — Denman, P.J., Lawton, Wisner, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her of burglary in the third degree (Penal Law § 140.20), grand larceny in the fourth degree (Penal Law § 155.30), and petit larceny (Penal Law § 155.25). The sole contention on appeal is that Supreme Court erred in denying defendant's request to charge the jury on the affirmative defense of duress.
The court properly denied that request to charge. Penal Law § 40.00 (1) provides that "it is an affirmative defense that the defendant engaged in the proscribed conduct because [she] was coerced to do so by the use or threatened imminent use of unlawful physical force upon [her] or a third person, which force or threatened force a person of reasonable firmness in [her] situation would have been unable to resist" ( see generally, People v. Rosario, 186 A.D.2d 598, 599, lv denied 81 N.Y.2d 794). Viewing the evidence in the light most favorable to defendant ( see, People v. Jenkins, 214 A.D.2d 584, 585), we conclude that there is no reasonable view thereof to support the affirmative defense of duress ( see, People v. Ruiz, 176 A.D.2d 683, 684-685, lv denied 79 N.Y.2d 952). The testimony of defendant concerning her husband's abusiveness does not support the claim of duress. Defendant did not testify to any acts or threats of abuse at the time of the crimes ( see, People v. Cornwell, 160 A.D.2d 1175, 1176; People v. Brown, 68 A.D.2d 503, 513; cf., People v. Tenace, 97 A.D.2d 592, 593). Post-crime threats and force are irrelevant as a matter of law ( see, People v. Cornwell, supra, at 1176; People.v. Tayeh, 96 A.D.2d 1045, 1047). Prior threats and assaults may support a claim of duress at the time of the crime ( see, People v. Lane, 112 A.D.2d 247, 248, lv denied 66 N.Y.2d 920; People v. Amato, 99 A.D.2d 495), but only when combined with a present and immediate compulsion ( see, People v. Tenace, supra, at 593). Here, even if the prior abuse or threats carried over to the time of the crime, there nonetheless was insufficient proof that the threatened harm was imminent ( see, Penal Law § 40.00; People v. Cox, 207 A.D.2d 995, lv denied 84 N.Y.2d 1010; People v. Tayeh, supra, at 1047; People v. Brown, supra, at 513; cf., People v. Hendrix, 199 A.D.2d 643, 644, lv denied 83 N.Y.2d 806). Defendant admitted that she was able to separate herself from her husband throughout much of the time frame of each incident ( see, People v. Vespa, 165 A.D.2d 679, 680, lv denied 76 N.Y.2d 992; People v. Ramjohn, 128 A.D.2d 904, lv denied 70 N.Y.2d 654; People v. Lane, supra, at 248; People v. Campos, 108 A.D.2d 751, 752; see generally, Penal Law § 40.00; People v. Amato, supra, at 496).