| People v Collazo |
| 2007 NY Slip Op 08136 [45 AD3d 899] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Keith Collazo,Appellant. |
—[*1] Patricia A. DeAngelis, District Attorney, Troy (Anne L. Coonrad of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Rensselaer County (Czajka,J.), rendered February 13, 2004, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree, kidnapping in the second degree, robbery in the first degree (twocounts), criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
Defendant first contends that his convictions for attempted murder in the second degree,kidnapping in the second degree, criminal possession of a weapon in the second degree, andcriminal possession of a weapon in the third degree are against the weight of the evidence. We donot agree. The proof at trial showed that on September 23, 2002 in the City of Troy, RensselaerCounty, defendant, along with his cousin, Samuel Calderon, who was a fellow gang member,enticed Charles McIntyre into a Honda by claiming that they wanted to buy drugs from him. Inthe Honda, Calderon held McIntyre at gunpoint while Calderon and defendant tried to ascertainfrom him the whereabouts of a man known as James, who had previously shot defendant in thehand. After McIntyre claimed that he did not know, he was struck by defendant while Calderoncontinued to hold him at gunpoint. Calderon and defendant also forced McIntyre to empty hispockets.[*2]
McIntyre then received a call from his friend TimothyScott and, at the direction of defendant and Calderon, McIntyre instructed Scott to meet him in anearby alleyway. There, Calderon exited the Honda and fired multiple shots at Scott's car,including a shot that penetrated the windshield. Scott escaped by speeding backwards down thealleyway away from Calderon. When Calderon re-entered the Honda and stated that he thoughthe had hit Scott, defendant gave him a "high-five." McIntyre was then driven to the City ofAlbany, where he showed Calderon and defendant the location where he had last seen James,however, he was no longer there. Thereafter, McIntyre was driven back to Troy, where the Hondawas eventually stopped by the police. Viewing the evidence in a neutral light and deferring to thejury's credibility determinations, we find that the weight of the evidence established thatdefendant, with the requisite mental state, acted in concert with and intentionally aided Calderonin the commission of the charged crimes (see Penal Law § 20.00; People vWhatley, 69 NY2d 784, 785 [1987]; People v Rosado, 26 AD3d 532, 533 [2006], lv denied 7NY3d 762 [2006]; People v McDonald, 257 AD2d 695, 695-696 [1999], lvdenied 93 NY2d 876 [1999]).
Defendant's further contention that his kidnapping conviction is precluded under the mergerdoctrine lacks merit, since the restraint of McIntyre was more than "a minimal intrusionnecessary and integral to [the other] crime[s]" (People v Gonzalez, 80 NY2d 146, 153[1992]; accord People v Rosado, 26 AD3d at 533). Indeed, the evidence establishes thatMcIntyre was kidnapped for the primary purpose of locating James, a conclusion which issupported by the fact that, even after they had robbed McIntyre and then used him to lure Scott totheir location, defendant and Calderon continued to detain McIntyre, directed him to guide themto where he had last seen James, and then transported him back to Troy. In total, Calderon anddefendant detained McIntyre for more than two hours. Thus, the kidnapping constituted "a crimein itself" (People v Gonzalez, 80 NY2d at 153; see People v Howard, 305 AD2d869, 871 [2003], lv denied 100 NY2d 583 [2003]).
We also find no merit in defendant's contention that the introduction of evidence of his gangmembership constituted reversible error. Such evidence provided a necessary background for thecharged crimes and also explained the relationship between defendant and his codefendant asmembers of the same gang, as well as their relationship to James and Scott, who were apparentlyassociated with a rival gang (see Peoplev Faccio, 33 AD3d 1041, 1042 [2006], lv denied 8 NY3d 845 [2007]; People v Oliver, 19 AD3d 512,512-513 [2005], lv denied 5 NY3d 808 [2005]). Moreover, any potential prejudice todefendant was alleviated by County Court's repeated instructions to the jury regarding the properuse of the information (see People v Faccio, 33 AD3d at 1042; People v Oliver,19 AD3d at 513).
Additionally, defendant's arguments that the People improperly commented on his pretrialsilence and County Court failed to properly charge the jury regarding the voluntariness of hisstatement are unpreserved and do not warrant our intervention in the interest of justice (see People v Miles, 36 AD3d1021, 1023 [2007], lv denied 8 NY3d 988 [2007]; People v Esposito, 191AD2d 746, 748-749 [1993], lv denied 81 NY2d 885 [1993]). However, we are persuadedthat defendant's 50-year aggregate prison sentence is harsh and excessive in light of, among otherthings, the circumstances of the crimes and the more lenient seven-year prison sentence imposedupon Calderon, who was the principal actor in these crimes (see People v Robinson, 258AD2d 817, 818 [1999], lv denied 93 NY2d 978 [1999]). Accordingly, we find itappropriate to reduce defendant's sentence in the interest of justice by directing that the 25-yearsentences imposed for the attempted murder, robbery and kidnapping counts be reduced to 15years, with all sentences to run concurrently.
Carpinello, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reducing the sentences imposed under counts2, 4, 6 and 8 of the indictment to 15 years for each conviction, with all sentences imposed to runconcurrently to one another, and, as so modified, affirmed.