| People v McEathron |
| 2011 NY Slip Op 05749 [86 AD3d 915] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DarrenMcEathron, Appellant. |
—[*1] John C. Tunney, District Attorney, Bath, for respondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), renderedOctober 20, 2008. The judgment convicted defendant, upon a jury verdict, of kidnapping in thesecond degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofkidnapping in the second degree (Penal Law § 135.20) and assault in the second degree(§ 120.05 [6]). We reject defendant's contention that County Court erred in denying hismotion for a trial order of dismissal with respect to the kidnapping charge on the ground that itviolates the merger doctrine. That doctrine prohibits a conviction for kidnapping based upon actsthat fall within the definition of that crime but are merely incidental to another crime (seegenerally People v Gonzalez, 80 NY2d 146, 151-152 [1992]; People v Cassidy, 40NY2d 763, 767 [1976]). Contrary to the People's contention, we conclude at the outset thatdefendant preserved his contention for our review. Defense counsel moved for a trial order ofdismissal at the close of the People's case and renewed that motion at the conclusion of all theevidence (see CPL 290.10 [1]; People v Payne, 3 NY3d 266, 276-277 [2004], rearg denied3 NY3d 767 [2004]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]).
We agree with the People, however, that the merger doctrine does not apply to the facts ofthis case. In making that determination, our "guiding principle is whether [defendant's] restraint[of the victim] was 'so much the part of another substantive crime that the substantive crimecould not have been committed without such acts and that independent criminal responsibilitymay not fairly be attributed to them' " (Gonzalez, 80 NY2d at 153, quotingCassidy, 40 NY2d at 767). Here, " '[t]he [abduction] was not a minimal intrusionnecessary and integral to another crime, nor was it simultaneous and inseparable from anothercrime. It was a crime in itself' " (Peoplev O'Connor, 21 AD3d 1364, 1365 [2005], lv denied 6 NY3d 757 [2005],quoting Gonzalez, 80 NY2d at 153). Thus, we conclude that the kidnapping was not apart of the assault. Rather, the evidence demonstrates that defendant restrained and began totransport the victim for undisclosed purposes and that the assault was incidental to thekidnapping.
Defendant further contends that he was denied a fair trial when the People improperly [*2]bolstered the victim's testimony. That contention is not preservedfor our review inasmuch as defendant's objection to the testimony in question was based only onthe ground that it constituted inadmissible hearsay. In any event, any bolstering that may havetaken place is harmless inasmuch as the evidence of defendant's guilt was overwhelming andthere is no significant probability that the jury would have acquitted defendant but for the error(see People v Johnson, 57 NY2d 969, 970 [1982]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Defendant failed to preserve for our review hiscontention with respect to the remaining instances of alleged prosecutorial misconduct involvingthe questioning of witnesses (see CPL 470.05 [2]), and we decline to exercise our powerto review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Defendant also failed to preserve for our review his contention that he was deprived of a fair trialbased on prosecutorial misconduct during summation (see People v Fisher, 78 AD3d 1605, 1605-1606 [2010]; People v Lyon, 77 AD3d 1338,1339 [2010], lv denied 15 NY3d 954 [2010]; People v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8NY3d 849 [2007]) and, in any event, that contention is without merit. The majority of thecomments in question were within " 'the broad bounds of rhetorical comment permissible' "during summations (People vWilliams, 28 AD3d 1059, 1061 [2006], affd 8 NY3d 854 [2007], quotingPeople v Galloway, 54 NY2d 396, 399 [1981]), and they were " 'either a fair response todefense counsel's summation or fair comment on the evidence' " (People v Green, 60 AD3d 1320,1322 [2009], lv denied 12 NY3d 915 [2009]). Even assuming, arguendo, that some of theprosecutor's comments were beyond those bounds, we conclude that they were not so egregiousas to deprive defendant of a fair trial (see People v Figgins, 72 AD3d 1599 [2010], lv denied 15NY3d 893 [2010]; People vSweney, 55 AD3d 1350, 1351 [2008], lv denied 11 NY3d 901 [2008]).
We reject the contention of defendant that he was denied effective assistance of counsel. Tothe extent that defendant contends that defense counsel was ineffective for failing to move tosuppress certain evidence, "[d]efendant has failed to show that [such] a . . . motion. . . , if made, would have been successful" (People v Matthews, 27 AD3d 1115, 1116 [2006]). In addition,defendant failed to "demonstrate the absence of strategic or other legitimate explanations" fordefense counsel's failure to make the pretrial motions that he now claims should have been made(People v Garcia, 75 NY2d 973, 974 [1990]; see People v Crouch, 70 AD3d 1369, 1370 [2010], lvdenied 15 NY3d 773 [2010]).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Smith, J.P., Fahey, Carni,Lindley and Gorski, JJ.