People v. Gonzalez , 171 A.D.2d 127 ( 1991 )

OPINION OF THE COURT

Lawrence, J.

The defendant was charged, inter alia, with kidnapping in the second degree (Penal Law § 135.20), assault in the second degree (two counts) (Penal Law § 120.05 [2], [6]), attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]), and attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]), based on events which allegedly occurred on November 28, 1987, involving the complainant. The indictment also charged the defendant with similar counts based on events which allegedly occurred on February 13, 1988, involving another woman, but these latter counts were dismissed at the end of the People’s case.

The only evidence of the defendant’s alleged criminal acts committed on November 28, 1987, consisted of the testimony of the complainant, who first reported the incident to the police on February 14, 1988, when the police came to interview her in connection with the reported attack on the other woman. The complainant specifically testified that on the afternoon of November 28, 1987, she brought her three oldest children to her neighbor’s apartment. She intended to go to Woodhull Hospital to fill a prescription. The defendant was present and volunteered to go downstairs and call a taxicab for her. It was about 4:15 p.m. or 4:30 p.m. when the complainant entered the taxicab. The defendant then suddenly climbed in behind her and told the driver to "pull off’ and "keep driving”. The ride lasted "more than 10 minutes” and "[mjaybe about two hours”. At the outset, the defendant told the complainant that she was going to "pay” for what everyone had done to him. When the complainant indicated that she did not know what the defendant was talking about, the defendant kept repeating that she was "paying” for what had happened to him, and she should shut up. The defendant then began to hit the complainant about her face with his fists. He continually assaulted her throughout the ride, and at one point, he struck her in the back of her head with a gun. The defendant further stated that he would kill the complainant because she "was paying for what everybody did to him”.

The defendant also asked the taxicab driver if he wanted to watch him (the defendant) kill the complainant. At another point, the defendant told the complainant that if she told anyone about what happened in the taxicab, he would kill her son. As darkness set in, the taxicab ride ended at a vacant parking lot somewhere in Brooklyn. The complainant could not recall the lot’s exact location, but estimated that it was about two miles from her home. At the parking lot, the defendant pulled the complainant out of the taxicab. The defendant again threatened to kill the complainant’s son if she screamed, and he invited the taxicab driver to punch the complainant. The taxicab driver punched the complainant in her mouth with his fist. The defendant continually screamed at the complainant; he again struck her in the back of her head with the gun, and he punched her in her stomach, causing her to fall to the ground. As she passed into unconsciousness, the defendant told the complainant that he was going to rape her. The complainant awoke as it was getting light, the next morning. She was only clothed in her shirt and socks, she had a lump on her head, her stomach and vagina felt sore, and her legs felt sore, "wet” and "sticky”. She found the rest of her clothes strewn about the parking lot. While the complainant claimed that someone "must have” done something to her and that she was raped based on her physical condition when she awoke, she conceded that she did not see or feel the defendant, the taxicab driver, or anyone else touch her "in a sexual way”. Although the complainant was four months’ pregnant at the time of the alleged incident, and despite the alleged violent nature of the attack, there was no evidence presented that she sought any medical treatment for her injuries. Further, the complainant’s former sister-in-law, who saw the complainant the morning after the alleged incident, testified that the complainant only had a lump on her head — its size was undisclosed — and a bruised lip.

At the end of the case, the trial court dismissed the counts of assault in the second degree for lack of proof, and declined to submit attempted sexual abuse in the first degree to the jury, because "there is no view [of evidence] other than Attempted Rape”. The jury acquitted the defendant of attempted rape in the first degree, and convicted him solely of kidnapping in the second degree, based on the alleged asportation and detention of the complainant during the ride in the taxicab.

We agree with the defendant that the evidence presented at the trial requires reversal of his kidnapping conviction which is precluded by the merger doctrine. The application of the merger doctrine under the circumstances herein is entirely consistent with the purpose thereof, which is "to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them. Tt is this kind of factual merger with the ultimate crime of the preliminary, preparatory, or concurrent action that the rule is designed to recognize, and thus prevent unnatural elevation of the "true” crime to be charged. It is a merger suggestive of, but not quite like, the merger of the preparation and attempt with the consummated crime, a familiar concept in the criminal law’ (People v Miles, [23 NY2d 527], 539 [cert denied 395 US 948]; consider People v Richette, 33 NY2d 42, interpreting Penal Law, § 110.00.)” (People v Cassidy, 40 NY2d 763, 767; see, People v Cain, 76 NY2d 119, 124-125; People v Smith, 47 NY2d 83; People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159, cert denied 381 US 938.) Moreover, the alleged horrendous nature of the defendant’s behavior in this case derives not from the manner of detention, but rather from the defendant’s alleged assault and attempted sexual crimes on the complainant, which charges were either dismissed because of lack of proof, or not credited by the jury, also apparently because of a lack of proof (see, People v Burgess, 107 AD2d 703; People v White, 88 AD2d 940; People v Dolan, 51 AD2d 589, affd 40 NY2d 763).

While the merger doctrine may not be applicable in situations where the abduction is effectuated for purposes of murder (see, People v Miles, supra; People v Carmichael, 155 AD2d 983; cf., People v Wachtel, 124 AD2d 613), in the context of the entire tenor of the incident herein, the evidence at best only showed that the defendant intended to assault the complainant, and commit sex offenses against her, and that the defendant’s alleged query to the taxicab driver as to whether he wanted to watch the killing of the complainant, and his alleged statements that he would kill her and her son, were idle threats (see, People v Burgess, supra; see also, People v Usher, 49 AD2d 499, 507, affd 40 NY2d 763; cf., People v Miles, supra; People v De Meo, 139 AD2d 758; People v Wilsey, 99 AD2d 877).

We find no merit to any argument that the defendant’s conviction should stand because he was only convicted of kidnapping in the second degree. The merger doctrine may be applied despite the acquittal or dismissal of the other charges into which the kidnapping merges (see, People v Usher, supra, at 507; People v Knight, 161 AD2d 668, 669; People v Salimi, 159 AD2d 658; People v Jackson, 63 AD2d 1032; see also, People v White, 88 AD2d 940, supra). A review of those cases wherein the merger doctrine has been rejected when kidnapping is the sole count charged clearly indicates that the underlying reason for such preclusion is not the fact that no other crime was charged but that there is "a total absence of any evidence of the commission or attempted commission of any other crime to which the abduction of the victim was incidental or inseparable from, and therefore there was nothing into which the kidnapping could merge” (People v Dodt, 92 AD2d 1063, 1064 [emphasis supplied], revd on other grounds 61 NY2d 408; see, People v Kalyon, 142 AD2d 650; People v Tocco, 114 AD2d 385; People v Cresci, 112 AD2d 246; People v Rios, 88 AD2d 1056, 1057, affd 60 NY2d 764; see also, People v Balcom, 171 AD2d 1028 [the Fourth Department did not specifically discuss the merger doctrine in affirming the defendant’s kidnapping conviction]). Thus, our determination does not, as our dissenting colleagues contend, "put an unwarranted and inappropriate premium on draftsmanship”, in that it cannot and should not be read to permit the People to circumvent the merger doctrine by only charging the crime of kidnapping in the second degree.

In People v Usher (supra, at 501), which cannot be factually or legally distinguished from the case herein, "[t]he victim was accosted at knife point by the defendant and a confederate * * * at about 12:15 a.m., as she was walking home from work. She was forcibly taken to a vacant building, a distance of a minute’s walk away, where they took some change from her pocketbook. She was then taken to a room in an adjoining building where she was raped by both men. The time interval of the whole incident was approximately 25 minutes”. The defendant was charged with robbery, grand larceny, and kidnapping, but he was not indicted for rape owing to a lack of corroborative evidence which was then required by statute (see, People v Usher, supra, at 500-501). After trial, the defendant was acquitted of the robbery and larceny charges, but convicted of the kidnapping charge (see, People v Usher, supra, at 500). In determining that the kidnapping conviction could not stand, this court rejected the argument that the defendant’s acquittal on the robbery charge permitted the jury to consider the kidnapping charge, stating that the acquittal did not “in some way [create] a vacuum in which the jury could view the charge of kidnapping in the second degree in total isolation from the facts in the case and contrary to the prosecution’s own theory that a robbery and a larceny actually had taken place” (People v Usher, supra, at 507). Similarly, in this case, the charge of kidnapping in the second degree cannot be viewed in total isolation from the facts in the case and contrary to the prosecution’s own theory that an assault and an attempted sexual crime had taken place. The true crime charged herein was, as our dissenting colleagues note, the alleged “violent rampage of an armed intruder”. ”[T]he confinement in the [taxicab] was only the incidental means to the accomplishment of th[e] assault [and attempted sexual crime]” (People v Cassidy, 40 NY2d 763, 768). Further, our dissenting colleagues’ reliance on the length of the “abduction” is misplaced since similar restraints of 1 Vi (see, People v Dolan, 40 NY2d 763, 768, supra) and ZVi hours (see, People v White, supra), have not precluded the application of the merger doctrine.

Finally, the cases in which merger was foreclosed, relied upon by our dissenting colleagues, are clearly distinguishable because they either do not reach the issue of whether the merger doctrine is applicable (see, People v Morales, 148 AD2d 325), or involve situations concerning the taking of a hostage by the defendant (see, People v India, 67 AD2d 488), or a restraint or abduction by the defendant after the completion of other crimes (see, People v Miles, supra; People v Epps, 160 AD2d 171, 172; People v Salimi, supra; People v Piotter, 142 AD2d 939; see also, People v Smith, supra, at 87; People v Brown, 112 AD2d 1087; People v Wilsey, 99 AD2d 877, supra).

In light of our determination, we need not address the defendant’s other contentions.