| People v McFarlane |
| 2013 NY Slip Op 03344 [106 AD3d 836] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Howard McFarlane, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Matthew J. Sweet of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered February 16, 2011, convicting him of robbery in the second degree,unlawful imprisonment in the second degree, and criminal possession of stolen propertyin the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the conviction of unlawful imprisonment in the second degree,vacating the sentence imposed thereon, and dismissing that count of the indictment; as somodified, the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by the admission ofevidence of certain uncharged crimes (see generally People v Molineux, 168 NY264 [1901]) is unpreserved for appellate review (see CPL 470.05 [2]) and, in anyevent, without merit. Moreover, defense counsel's failure to object to the admission ofthis evidence did not constitute ineffective assistance of counsel (see generally People v Stultz, 2NY3d 277, 287 [2004]; People v Benevento, 91 NY2d 708, 711-714[1998]).
The defendant's contention that his conviction of unlawful imprisonment in thesecond degree should be vacated pursuant to the merger doctrine in light of hisconviction of robbery in the second degree is unpreserved for appellate review (seeCPL 470.05 [2]). However, upon exercising our interest of justice jurisdiction, weconclude that the merger doctrine precludes the conviction of unlawful imprisonment inthe second degree because the restraint of the complainant was essentially incidental toand inseparable from the robbery (see People v Cain, 76 NY2d 119, 124-125[1990]; People v Alston, 279 AD2d 583, 584 [2001]; People vAndrovett, 135 AD2d 640, 642 [1987]; cf. People v McLeod, 50 AD3d 826, 826 [2008]). Thus,the conviction of unlawful imprisonment in the second degree must be vacated and thatcount of the indictment dismissed. Skelos, J.P., Dickerson, Lott and Roman, JJ., concur.