| People v Cole |
| 2016 NY Slip Op 05164 [140 AD3d 1183] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Calvin Cole, Appellant. |
Beverly Van Ness, New York, NY, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, SolomonNeubort, and Avshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered May 23, 2013, convicting him of kidnapping in the second degree,robbery in the third degree, unlawful imprisonment in the second degree, assault in thethird degree, and endangering the welfare of a child, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law and on the facts, by vacating theconvictions of unlawful imprisonment in the second degree and assault in the thirddegree, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution, we find that theconviction of kidnapping in the second degree was supported by legally sufficientevidence (see People v Contes, 60 NY2d 620, 621 [1983]). The evidenceestablished that the defendant, acting in concert with his codefendants, restrained thecomplainant with intent to prevent her liberation by secreting her in a place where shewas unlikely to be found, i.e., a car with tinted windows traveling through Brooklyn(see Penal Law § 135.00 [2]; People v Gonzalez, 80 NY2d146, 148 [1992]; People vBurkhardt, 81 AD3d 970 [2011]; People v Salimi, 159 AD2d 658[1990]; People v Valero, 134 AD2d 635 [1987]). Further, upon our independentreview of the evidence, we are satisfied that the verdict of guilt on that count was notagainst the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d633 [2006]). Moreover, the defendant's conviction of kidnapping in the seconddegree did not merge with his conviction of robbery in the third degree inasmuch as thekidnapping was not incidental to and inseparable from the robbery of the complainant(see People v Gonzalez, 80 NY2d at 153; People v Collazo, 45 AD3d 899, 901 [2007]). Thekidnapping was marked by brutal and degrading treatment and was already completed, inall of its elements, before the complainant was robbed (see People v Gonzalez, 80NY2d at 153; People vLeiva, 59 AD3d 161 [2009]; People v Sceravino, 193 AD2d 824, 825[1993]).
However, as the People correctly concede, the defendant's conviction of unlawfulimprisonment in the second degree must be vacated, since that charge is a lesser-includedoffense of kidnapping in the second degree (see Penal Law§§ 135.00 [2]; 135.05, 135.20; CPL 300.40 [3] [b]; People vLee, 39 NY2d 388, 390 [1976]; People v Best, 120 AD3d 707, 709 [2014]).
[*2] The defendant's contention that the evidence waslegally insufficient to support his conviction of assault in the third degree is unpreservedfor appellate review (see CPL 470.05; People v Hawkins, 11 NY3d 484, 491-492 [2008]).However, upon our independent review of the record (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we find that the verdict of guilt on this count was against the weight ofthe evidence, since the evidence presented at trial did not establish, beyond a reasonabledoubt, that the complainant sustained a "physical injury" within the meaning of PenalLaw § 10.00 (9) (see People v Boley, 106 AD3d 753 [2013]; People v Young, 99 AD3d739 [2012]; People vZalevsky, 82 AD3d 1136 [2011]; People v Williams, 46 AD3d 1115 [2007]; People vGoins, 129 AD2d 733 [1987]). Accordingly, we vacate the conviction of assault inthe third degree and the sentence imposed thereon, and dismiss that count of theindictment.
The defendant failed to preserve for appellate review his contention that the sentencethe Supreme Court imposed improperly penalized him for exercising his right to a jurytrial, because he did not set forth the issue on the record at the time of sentencing (seePeople v Hurley, 75 NY2d 887, 888 [1990]; People v Dunaway, 134 AD3d 952, 954 [2015]). In anyevent, this contention is without merit (see People v Dunaway, 134 AD3d at954).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Leventhal, J.P., Dickerson, Sgroi and Cohen, JJ., concur.