| People v Leiva |
| 2009 NY Slip Op 00582 [59 AD3d 161] |
| February 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Carlos Leiva, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered May 16,2005, convicting defendant, after a jury trial, of kidnapping in the second degree and assault inthe second degree, and sentencing him to concurrent terms of 15 and 5 years, respectively, andorder, same court and Justice, entered on or about August 6, 2007, which denied defendant'sCPL 440.10 motion to vacate the judgment, unanimously affirmed.
Defendant's argument that the kidnapping merged with the assault is unpreserved and wedecline to review it in the interest of justice. As an alternative holding, we also reject it on themerits. "[T]he merger doctrine was not designed to merge true kidnappings into other crimesmerely because the kidnappings were used to accomplish ultimate crimes . . . Onlyif the conduct underlying the abduction was incidental to and inseparable from another crime,will the doctrine apply" (People v Smith, 47 NY2d 83, 87 [1979]). In the case at bar, thefive-to-six-hour restraint was far more extensive than necessary to accomplish the assault (see People v Romance, 35 AD3d201, 203 [2006], lv denied 8 NY3d 926 [2007]; People v Peters, 1 AD3d 270 [2003], lv denied 1 NY3d632 [2004]). Although defendant assaulted the victim many times over the course of the incident,there were extensive periods when he restrained her without assaulting her. Furthermore, themerger doctrine does not apply "where the manner of detention is egregious" (People vGonzalez, 80 NY2d 146, 153 [1992]). The detention in the instant case was marked bybrutal and degrading treatment (see People v Thomas, 212 AD2d 474, 475 [1995], lvdenied 85 NY2d 944 [1995]; People v Epps, 160 AD2d 171, 172 [1990], lvdenied 76 NY2d 734 [1990]). For the foregoing reasons, we likewise reject that branch ofdefendant's ineffective assistance claim in which he asserts his trial attorney should have raisedthe merger issue.
Defendant received effective assistance of counsel under both the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]), and his CPL 440.10 motion asserting ineffectiveassistance was without merit. Defendant, who was represented by a series of attorneys, failed to"demonstrate the absence of strategic or other legitimate explanations" (People v Rivera,71 [*2]NY2d 705, 709 [1988]) for the absence of a psychiatriclack-of-intent defense and alleged deficiencies in the presentation of an intoxication defense.Although the function of a CPL 440.10 motion, in the present context, is to expand the trialrecord (see People v Love, 57 NY2d 998 [1982]), defendant submitted no affidavits fromthe lawyers who represented him at the relevant times or from anyone else who could shed lighton counsel's strategic decisions. That the lawyers who represented defendant in the early stagesof the case failed to investigate the feasibility of a psychiatric defense, or chose to employ such adefense but carelessly failed to file a CPL 250.10 notice, cannot simply be assumed. That one ormore of these lawyers decided that such a defense had little hope of success (see People v Royster, 40 AD3d885, 886 [2007], lv denied 9 NY3d 881 [2007]) or might have undermined betterdefenses also is plausible.
Nor can it be assumed that defendant's trial lawyer never contacted an expert witness aboutan intoxication defense. We cannot disregard the possibility that this lawyer contacted the twoexperts whose names he gave to the People and determined that neither of them would be able tooffer useful testimony. Similarly, since defendant's trial counsel presented other proof ofdefendant's intoxication, counsel could have concluded that introducing a notation contained indefendant's medical records would have been cumulative.
Furthermore, even if defendant's attorneys should have taken all the steps with regard topsychiatric and intoxication defenses that defendant claims they should have taken, nothing inthe trial record or the submissions on the CPL 440.10 motion establishes that such defenseswould have had any reasonable chance of success. Accordingly, defendant has not establishedthat any of the alleged deficiencies caused him any prejudice or deprived him of a fair trial.
We perceive no basis for reducing the sentence. Concur—Gonzalez, J.P., Buckley,Catterson, McGuire and Acosta, JJ.