| People v McLeod |
| 2008 NY Slip Op 03246 [50 AD3d 826] |
| April 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Burnell McLeod, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest,J.), rendered April 14, 2005, convicting him of murder in the second degree, burglary in the thirddegree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of, inter alia, murder in the second degree pursuant to PenalLaw § 125.25 (3) predicated upon kidnapping. The defendant's contention that the mergerdoctrine operated to preclude that conviction because the kidnapping charge on which it wasbased merged with the robbery charge of which he was acquitted (see People v Gonzalez,80 NY2d 146 [1992]), is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, the abduction of the victim at gunpoint constituted the discrete crime of kidnapping in thesecond degree, the elements of which were completed before the acts underlying the robberycharge took place. Moreover, the confinement in this case continued past the completion of theacts underlying the robbery charge (see People v Cartagena, 287 AD2d 515 [2001];People v Armstrong, 250 AD2d 618 [1998]). Under the circumstances, the restraint wasnot a minimal intrusion necessary and integral to the robbery, since the defendant could haveeffectuated a robbery without detaining the victim, and thus, the merger doctrine wasinapplicable (see People v Balde, 260 AD2d 579 [1999]). Lifson, J.P., Florio, Eng andChambers, JJ., concur.