| People v Mao-Sheng Lin |
| 2008 NY Slip Op 03259 [50 AD3d 1251] |
| April 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mao-ShengLin, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Linda Gafford of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Tompkins County (Sherman,J.), rendered March 21, 2005, upon a verdict convicting defendant of the crimes of kidnapping inthe first degree, burglary in the first degree (two counts) and criminal use of a firearm in the firstdegree.
Shortly after 9:00 a.m. on November 20, 2003, defendant, a distant relative and formerbusiness partner of Tao Lin, walked into the kitchen of Lin's restaurant with two othersdemanding $150,000. Defendant, who was armed with a gun and a knife, claimed that Lin owedhim money as a result of their failed business dealings. He and his cohorts proceeded to tie upLin and Lin's wife. They also roused and similarly bound two restaurant workers who wereasleep in Lin's residence above the restaurant.
After scavenging the restaurant and residence for money, producing some cash, defendantdemanded that Lin accompany him to a nearby bank to withdraw $150,000. Lin was told that hiswife would be killed if he did not produce this sum in short order. Before defendant and Lin gotto the bank, Lin's wife was able to escape and summon help. This incident resulted in a 20-countindictment against defendant charging him with one count of kidnapping in the first degree andvarious other counts and degrees of unlawful imprisonment, robbery, burglary, criminal use andpossession of a firearm, conspiracy and coercion. Of the 10 counts ultimately [*2]considered by the jury, defendant was found guilty of kidnapping inthe first degree, burglary in the first degree (two counts) and criminal use of a firearm in the firstdegree.[FN*] He now appeals.
First, we are unpersuaded by defendant's contention that his conviction for kidnapping Lin'swife is precluded under the merger doctrine. The merger doctrine is intended to preclude aconviction for kidnapping based on acts which are "so much the part of another substantive crimethat the substantive crime could not have been committed without such acts and that independentcriminal responsibility may not fairly be attributed to them" (People v Gonzalez, 80NY2d 146, 153 [1992] [internal quotation marks and citation omitted]). Here, after defendant'sattempt to locate a sizeable amount of cash from Lin's premises proved fruitless, Lin wasrepeatedly told that his wife, who was restrained and detained at gunpoint, would be killed if hedid not withdraw a large sum of money from his bank within a set period of time (seePenal Law §§ 135.00, 135.25 [1]). Indeed, Lin was led to a nearby bank bydefendant, who was armed with a knife, and who repeated the threats against his wife while inconstant contact with his cohorts via a cell phone. This conduct was more than a "minimalintrusion necessary and integral" to any other crime committed that morning, including theattempted robbery of Lin (People v Gonzalez, 80 NY2d at 153; accord People v Rosado, 26 AD3d532, 533 [2006], lv denied 7 NY3d 762 [2006]; People v Passino, 25 AD3d 817, 818 [2006], lv denied 6NY3d 816 [2006]). Moreover, the wife's fortuitous escape from her captors before any moneywas actually withdrawn from the bank did not preclude the kidnapping conviction. Accordingly,County Court properly viewed the restraint of Lin's wife at gunpoint for the purpose of extortinga large sum of money as a discrete crime, and there was sufficient evidence to supportdefendant's conviction for kidnapping in the first degree (see People v Gonzalez, supra;see e.g. People v Passino, supra; People v Howard, 305 AD2d 869, 871 [2003],lv denied 100 NY2d 583 [2003]; People v Dinsio, 286 AD2d 517 [2001], lvdenied 97 NY2d 703 [2002], cert denied 536 US 942 [2002]; see also People vPellot, 105 AD2d 223 [1984], lv denied 64 NY2d 1022 [1985]).
Defendant's remaining contentions are likewise without merit. Upon our review of therecord, we find no basis to conclude that the interpreters used during the trial were incompetentor that any error in translation occurred such that defendant was denied a fair trial (see Peoplev Noor, 302 AD2d 480 [2003], lv denied 100 NY2d 541 [2003]; People vHubbard, 184 AD2d 781 [1992], lv denied 80 NY2d 1027 [1992]; People vFrazier, 159 AD2d 278 [1990], lv denied 76 NY2d 857 [1990]; People vDimitrov, 137 AD2d 552 [1988], lv denied 71 NY2d 968 [1988]; People vRolston, 109 AD2d 854, 855 [1985]; cf. People v Pavao, 59 NY2d 282 [1983]). Weare further unpersuaded that County Court abused its discretion in denying a motion for anadjournment by defendant's newly retained attorney (see People v Singleton, 41 NY2d402, 405 [1977]; People v Bryan, 46AD3d 1219, 1221 [2007]), particularly since previous adjournments had been granted in thecase, defendant had been given a reasonable amount of time to obtain new counsel and thisnewly retained attorney, who secured an acquittal on a majority of the charges submitted to thejury, had adequate time to prepare for trial (see People v Arroyave, 49 NY2d 264 [1980];People v Dashnaw, 37 AD3d860, 863 [2007], lv denied 8 NY3d 945 [2007]; People v Rosica, 171 AD2d931, 933 [1991], lv denied 77 NY2d 1000 [1991]; People v Danaher, 115 AD2d905, 906-907 [1985]). Next, defendant's pro se claim of judicial bias is unpreserved for reviewsince he failed to make a motion or otherwise request County Court to recuse itself [*3]from the case (see People v Prado, 4 NY3d 725, 726 [2004]; People v Bigwarfe, 35 AD3d 904,905 [2006], lv denied 8 NY3d 878 [2007]; People v Rizzo, 5 AD3d 924 [2004], lv denied 3 NY3d 646[2004]; People v Darling, 276 AD2d 922, 924 [2000], lv denied 96 NY2d 733[2001]). Were we to consider the argument, we would nevertheless find it unpersuasive.
Finally, we reject defendant's additional pro se argument that his statement to police shouldhave been suppressed because his limited ability to speak and understand English prevented himfrom understanding his Miranda rights. On this disputed issue, County Court specificallycredited the testimony of the two members of the State Police who were involved in takingdefendant's statement. According to the testimony of these officers, defendant was able toconverse with them in English, provided appropriate and succinct answers to all questions andnever once gave an indication of a problem with comprehension. Neither officer felt that therewas a need for an interpreter at any time. Under these circumstances, County Court did not err inrefusing to suppress defendant's statement (see People v Mora, 36 AD3d 1142 [2007], lv denied 8NY3d 988 [2007]).
Cardona, P.J., Spain, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: He was acquitted of four countsof robbery in the first degree and two lesser included counts of robbery in the second degree.