| People v Robinson |
| 2012 NY Slip Op 08575 [101 AD3d 1245] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v George E.Robinson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered May 11,2011 in Albany County, upon a verdict convicting defendant of the crimes of kidnapping in thesecond degree, attempted robbery in the second degree, criminal possession of a weapon in thethird degree, criminal possession of stolen property in the fourth degree and grand larceny in thefourth degree.
Following a jury trial, defendant was convicted of kidnapping in the second degree,attempted robbery in the second degree and other crimes stemming from an incident on August12, 2010 in which he entered a business in the Town of Colonie, Albany County, confronted anemployee (hereinafter the victim) and then brandished what appeared to be a gun. The victimtestified that defendant, who she identified at trial, asked if she was alone and she said no;defendant then pulled the gun out of a plastic bag and pointed it at her head, directing her to gether purse and keys, and told her that they were "going to [her] car." The victim offered defendanther purse, keys and car, telling him he could have them, which defendant declined, repeating thatthey were going to her car. The victim then proceeded at gunpoint to her car, which was parkedin a lot outside the building, and defendant ordered her to unlock it and get inside. The victimthrew her purse at defendant, startling him, allowing her to run away and escape to a nearbybusiness, fortunately ending her abduction. Defendant was apprehended shortly thereafter in anearby hotel parking lot in possession of what proved to be a pellet gun and the victim's purse.[*2]Upon his convictions, defendant was sentenced to concurrentprison terms with the maximum aggregate sentence of 15 years with five years of postreleasesupervision on the kidnapping conviction. Defendant now appeals.
Supreme Court (Lamont, J.) did not abuse its discretion in denying defendant's motion tosuppress the physical evidence as the product of an illegal stop and seizure or on the ground thatthe showup procedure was impermissibly suggestive. Town of Colonie police officers respondedto radio dispatches of a black male—wearing a grey T-shirt and blue cap with aweapon—outside the business where the victim fled. Officers observed defendant runningin close proximity to the crime scene—matching that description in clothing and skincolor—providing reasonable suspicion that he had committed these crimes and authorizingthe officers to forcibly stop, frisk, search and detain defendant (see People v Moore, 6 NY3d 496,498-499 [2006]; People v De Bour, 40 NY2d 210, 223 [1976]). Upon patting downdefendant, police discovered the pellet gun in defendant's possession, as well as the victim'spurse containing her credit cards, providing probable cause for his arrest (see People v Shulman, 6 NY3d 1,25-26 [2005], cert denied 547 US 1043 [2006]). Thus, all of the evidence obtained fromdefendant was the product of a lawful stop and search incident to his arrest (see People v Nesbitt, 56 AD3d816, 819 [2008], lv denied 11 NY3d 928 [2009]).
Moreover, the People demonstrated that the showup was reasonable, given that it wasconducted within 15 to 20 minutes and just across the road from the crime scene and, thus, inclose temporal and physical proximity (see People v Ortiz, 90 NY2d 533, 537 [1997]; see also People v Gilford, 16 NY3d864, 868 [2011]). The victim immediately identified defendant from a distance of 20 to 35feet, while still in the police car and without prompting, and the facts that defendant washandcuffed and flanked by two officers and the victim had been apprised that police had asuspect in custody did not render the procedure unduly suggestive or create a substantiallikelihood of misidentification (seePeople v Mathis, 60 AD3d 1144, 1146 [2009], lv denied 12 NY3d 927 [2009];People v August, 33 AD3d1046, 1048-1049 [2006], lv denied 8 NY3d 878 [2007]). Defendant's motion tosuppress was in all respects properly denied (see People v Ortiz, 90 NY2d at 537).
Next, defendant's conviction for kidnapping in the second degree did not merge with hisattempted robbery conviction, because the acts alleged to support the kidnapping were notinseparable from the attempted robbery.[FN*] Under the merger doctrine, a conviction for kidnapping and robbery, or other crimes, is onlyprecluded "if the restraint imposed was simply a minimal intrusion necessary and integral to theother crimes . . . and was simultaneous or inseparable from [them]" (People v Kruppenbacher, 81 AD3d1169, 1170-1171 [2011], lv denied 17 NY3d 797 [2011] [internal quotation marks,brackets and citations omitted]; see People v Bussey, 19 NY3d [*3]231, 238 [2012]; People v Perez, 93 AD3d 1032, 1033-1034 [2012], lvdenied 19 NY3d 1000 [2012]). The purpose of the merger doctrine is to preclude kidnappingconvictions (and sanctions) for acts of restraint which are " 'so much the part of anothersubstantive crime [like robbery] that the substantive crime could not have been committedwithout such acts and that independent criminal responsibility may not fairly be attributed to[those restraining acts]' " (People v Gonzalez, 80 NY2d 146, 153 [1992], quotingPeople v Cassidy, 40 NY2d 763, 767 [1976]; see People v Woodard, 93 AD3d 944, 948 [2012]).
Under the uncontroverted facts established here, the merger doctrine is inapplicable becausethe acts constituting kidnapping were separate and distinct from the prior acts constitutingattempted robbery, and the kidnapping was not merely incidental to or inseparable from the othercrimes (see People v Bussey, 19 NY3d at 238; People v Smith, 47 NY2d 83, 87[1979]). Defendant's actions in kidnapping the victim were a separate and additional offense inthat the attempted robbery was completed inside the victim's workplace before she was forced atgunpoint out of the building to her car; her confinement was continued outside the building afterthe robbery, when she was ordered to unlock the car and get in and, thus, the merger doctrinedoes not bar this kidnapping conviction (see People v Bussey, 19 NY3d at 238;People v Smith, 47 NY2d at 87; People v Rodena, 170 AD2d 418, 418-419[1991], lv denied 77 NY3d 966 [1991]). This subsequent, discrete conduct in theasportation of the victim to her car was not a "minimal intrusion necessary and integral" to therobbery attempt but, rather, was a crime in and of itself (People v Gonzalez, 80 NY2d at153; accord People v Kruppenbacher, 81 AD3d at 1171), as the robbery (or attempt)could have been committed without the subsequent continuing confinement and restraint of thevictim's movement (see id.; see also People v Bussey, 19 NY3d at 238;People v Smith, 47 NY2d at 87; People v Black, 18 AD2d 719, 720-721 [1962],cert denied 375 US 898 [1963]). Therefore, defendant's actions subsequent to theattempted robbery support a separate conviction and punishment for kidnapping.
Defendant's acquittal of robbery in the second degree (and conviction of the lesser includedoffense of attempted robbery in the second degree) does not alter the merger analysis or itsapplicability (see People v Gonzalez, 80 NY2d at 152). However, defendant could haveeasily completed the robbery inside the building when he first confronted the victim alone and, assuch, his continued restraint of her, at gunpoint out to her car, and his actions in ordering her intothe car were not merely incidental to a robbery so as to find a merger (see People v Romance, 35 AD3d201, 203 [2006], lv denied 8 NY3d 926 [2007]). Moreover, her quick thinking andfortuitous escape from her abductor, sparing her a more protracted ordeal, did not undermine thekidnapping conviction as a discrete crime (see People v Mao-Sheng Lin, 50 AD3d 1251, 1252 [2008], lvdenied 10 NY3d 961 [2008]). Finally, defendant's challenge to the constitutionally of a trialjudge deciding the issue of the applicability of the merger doctrine is not preserved for ourreview and will not be addressed (see CPL 470.05 [2]).
Peters, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant raised this issue attrial during the People's case and, after extensive argument, Supreme Court (McDonough, J.)ruled that there was no merger. Defendant again raised it in a pro se motion pursuant to CPL330.30. We note that the appropriate time for the court to decide an issue of merger is after trial(see People v Morales, 148 AD2d 325, 326 [1989]; see also People v Banks, 42 AD3d 574, 575-576 [2007], lvdenied 9 NY3d 1004 [2007]).