| People v Jacobs |
| 2008 NY Slip Op 05118 [52 AD3d 1182] [52 AD3d 1182] |
| June 6, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Peter Jacobs,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Amy J. Fricano, J.), renderedDecember 6, 2006. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree (three counts), criminal possession of a weapon in the third degree (two counts),endangering the welfare of a child, kidnapping in the second degree, attempted robbery in thefirst degree, criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing those parts convictingdefendant of kidnapping in the second degree and attempted robbery in the first degree,dismissing count 12 of the indictment, and dismissing count 13 of the indictment withoutprejudice to the People to re-present any appropriate charges under count 13 of the indictment toanother grand jury and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, three counts of assault in the second degree (Penal Law § 120.05 [2]), twocounts of criminal possession of a weapon in the third degree (§ 265.02 [1]), and one counteach of kidnapping in the second degree (§ 135.20) and attempted robbery in the firstdegree (§§ 110.00, 160.15 [3]). We agree with defendant that the kidnappingconviction is precluded by the merger doctrine (see generally People v Cassidy, 40 NY2d763, 767 [1976]). Although defendant failed to preserve his contention for our review, weexercise our power to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Here, the restraint and asportation of the victim were "so much the part of" theattempted robbery and assault of the victim that those crimes could not have been committedwithout the acts comprising the kidnapping (Cassidy, 40 NY2d at 767; see People vCain, 76 NY2d 119, 125 [1990]; cf. People v Rios, 60 NY2d 764, 766 [1983];People v Gray, 288 AD2d 897, 898 [2001], lv denied 97 NY2d 729 [2002]). Wetherefore modify the judgment by reversing that part convicting defendant of kidnapping in thesecond degree and dismissing count 12 of the indictment.
We also agree with defendant that the judgment must be further modified by reversing thatpart convicting him of attempted robbery in the first degree. Although defendant was [*2]indicted on a single count of attempted robbery, the Peoplepresented evidence establishing a completed robbery, which could result in a conviction ofattempted robbery (see Penal Law § 110.00; People v Alamo, 34 NY2d453, 456 [1974]), as well as evidence establishing an attempted robbery. "Reversal is requiredbecause the jury may have convicted defendant of an unindicted [attempted robbery], resulting inthe usurpation by the prosecutor of the exclusive power of the Grand Jury to determine thecharges" (People v McNab, 167 AD2d 858, 858 [1990]; see People v Comfort, 31 AD3d1110, 1111 [2006], lv denied 7 NY3d 847 [2006]), as well as the "danger that. . . different jurors convicted defendant based on different acts" (People vWhitfield, 255 AD2d 924, 924 [1998], lv denied 93 NY2d 981 [1999]). We thereforefurther modify the judgment by reversing that part convicting defendant of attempted robbery inthe first degree and dismissing count 13 of the indictment without prejudice to the People tore-present any appropriate charges under that count of the indictment to another grand jury (see e.g. People v Black, 38 AD3d1283, 1285 [2007], lv denied 8 NY3d 982 [2007]; People v Bracewell, 34 AD3d1197, 1199 [2006]).
Contrary to the contention of defendant, Supreme Court properly refused to suppress thewritten statements that he made to a police detective after he waived his Miranda rights.There was "such a definite, pronounced break [between the pre-Miranda interrogationand the post-Miranda] interrogation that defendant may be said to have returned, ineffect, to the status of one who [was] not under the influence of questioning" (People vChapple, 38 NY2d 112, 115 [1975]; see People v Smith, 275 AD2d 951 [2000],lv denied 96 NY2d 739 [2001]). Contrary to the further contention of defendant, neitherthe indictment nor the court's charge to the jury precluded a conviction of assault under countfive of the indictment, which was based on a theory of transferred intent (see Penal Law§ 120.05 [2]). The record establishes that the court's final charge on that count, to whichthere was no objection by defendant, adequately set forth the elements of that crime, and there islegally sufficient evidence of the elements of that crime "as those elements were charged to thejury without exception" (People v Dekle, 56 NY2d 835, 837 [1982] [emphasis omitted];see People v Sala, 95 NY2d 254, 260-261 [2000]).
We reject the further contention of defendant that he was denied effective assistance ofcounsel based upon defense counsel's failure to challenge the legality of the warrantless entryinto defendant's home and the warrantless arrest of defendant therein pursuant to Dunaway vNew York (442 US 200 [1979]) and Payton v New York (445 US 573 [1980]).Defendant failed to meet his burden of "demonstrat[ing] the absence of strategic or otherlegitimate explanations" for defense counsel's failure to do so (People v Garcia, 75 NY2d973, 974 [1990]; see People vMurphy, 43 AD3d 1334 [2007], lv denied 9 NY3d 1037 [2008]; see also People v Marcial, 41 AD3d1308, 1308-1309 [2007], lv denied 9 NY3d 878 [2007]). "We further conclude onthe record before us that the cumulative effect of defense counsel's [other] alleged deficiencies,viewed in totality and as of the time of the representation, did not deprive defendant of effectiveassistance of counsel" (Marcial, 41 AD3d at 1309; see generally People v Baldi,54 NY2d 137, 147 [1981]).
Contrary to defendant's further contentions, the verdict is not against the weight of theevidence with respect to assault in the second degree under counts four and five of the indictment(see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is notunduly harsh or severe. Defendant failed to preserve for our review his contentions concerningthe alleged legal insufficiency of the evidence with respect to those counts and count six, forcriminal possession of weapon in the third degree (see People v Gray, 86 NY2d 10, 19[1995]). Finally, defendant failed to preserve his remaining contentions for our review (seeCPL 470.05 [2]), and we decline to exercise our power to review those contentions as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Hurlbutt, J.P., Martoche, Fahey, Green and Gorski, JJ.