| People v Scott |
| 2008 NY Slip Op 00549 [47 AD3d 849] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MilesM. Scott, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z.Patsalos, J.), rendered December 6, 1999, convicting him of kidnapping in the second degree,unlawful imprisonment in the first degree, assault in the second degree, coercion in the firstdegree, menacing in the second degree, reckless endangerment in the first degree, and harassmentin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his "fundamental" right to appellate reviewdue to missing stenographic minutes of voir dire and the majority of the trial (People vMontgomery, 24 NY2d 130, 132 [1969]). The defendant did not move for relief or evenbring the fact of the missing minutes to the attention of the court or the stenographer until wellafter the expiration of the two-year statutory period the stenographer was required to preserve theminutes (see Judiciary Law § 297). Under the circumstances, the defendant wasnot deprived of the right to appeal his conviction (see People v Mirenda, 57 NY2d 261,267 [1982]; People v Bruno, 161 AD2d 778 [1990]; People v Glendy, 152 AD2d597 [1989]; People v Alston, 134 AD2d 433, 435 [1987]).
Upon the exercise of our factual review power (see CPL 470.15 [5]), and to theextent the record permits sufficient review, we are satisfied that the verdict was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).[*2]
The defendant's contention that the kidnapping convictionshould be dismissed pursuant to the merger doctrine is without merit. The defendant's restraint ofthe victim was a discrete act which requires punishment separate from the other crimes hecommitted (see People v Gonzalez, 80 NY2d 146 [1992]; People v Freeman, 267AD2d 470, 471 [1999]; People v Chronis, 209 AD2d 712 [1994]).
The sentence imposed for the kidnapping conviction did not constitute cruel and unusualpunishment in violation of constitutional limitations (see People v Jones, 39 NY2d 694[1976]). In addition, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80, 83 [1982]). Mastro, J.P., Covello, Angiolillo and Balkin, JJ., concur.