People v. Perez

• Citation: 2012 N.Y. Slip Op. 02129,93 A.D.3d 1032,942 N.Y.S.2d 227
• Parties: The PEOPLE of the State of New York, Respondent, v. Victor V. Hernandez PEREZ, also known as Vladimir V. Perez, also known as Hernandez Perez, Appellant.
• Decision Date: 22 March 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02129

93 A.D.3d 1032

942 N.Y.S.2d 227

The PEOPLE of the State of New York, Respondent,

v.Victor V. Hernandez PEREZ, also known as Vladimir V. Perez, also known as Hernandez Perez, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 22, 2012.

Barrett D. Mack, Valatie, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 6, 2010, (1) upon a verdict convicting defendant of the crimes of kidnapping in the second degree, robbery in the first degree, robbery in the second degree (two counts), assault in the second degree, sexually motivated felony (five counts), assault in the third degree and criminal possession of a weapon in the fourth degree (two counts), and (2) convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.

On an evening in July 2009, the victim was walking along a street in the City of Saratoga Springs, Saratoga County when defendant allegedly struck her on the head and knocked her to the ground, causing her to drop her purse and cell phone. Defendant put the victim and her belongings into his waiting minivan and drove north out of the city. As he drove, he pointed what appeared to be a handgun at the victim, repeatedly told her that he intended to rape and kill her, and demanded that she remove all of her clothing, which she did. When the van had traveled approximately 10 miles, the victim moved quickly to the front passenger door, opened it, and jumped out of the minivan while it was still moving. As the victim fled, defendant pointed the gun in her direction and she heard popping sounds which she believed were gunshots. The victim ran to a nearby house, where the police were called. Three days later, police officers apprehended defendant after stopping a vehicle that matched a description given by witnesses who had seen the victim leaping out of the minivan. A .177 caliber BB pistol and personal items belonging to the victim were recovered from the minivan; other possessions of the victim were found on defendant's person and in a trash can outside his residence.

Defendant was indicted on one count of kidnapping in the second degree, one count of robbery in the first degree, two counts of robbery in the second degree, two counts of assault in the second degree, six counts of sexually motivated felony, and two counts of criminal possession of a weapon in the fourth degree.¹ Following a jury trial, he was acquitted of one charge of assault in the second degree and the corresponding sexually motivated felony charge. He was convicted of assault in the third degree, as a lesser included offense, and the remaining charges. County Court sentenced him to an aggregate prison term of 25 years, to be followed by 10 years of postrelease supervision. Defendant appeals.

Initially, defendant contends that his conviction of kidnapping in the second degree was improper because it merged with the robbery convictions and the uncharged crime of attempted rape. Under the merger doctrine, a defendant may not be convicted of kidnapping and of other crimes “if the restraint imposed was simply a minimal intrusion necessary and integral to the other crimes ... and was simultaneous or inseparable from [them]” ( People v. Kruppenbacher, 81 A.D.3d 1169, 1170–1171, 917 N.Y.S.2d 405 [2011], lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] [internal quotation marks, brackets and citation omitted] ). The purpose of the doctrine is to preclude kidnapping convictions for actions which are “ ‘so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” ( People v. Gonzalez, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 603 N.E.2d 938 [1992], quoting People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870 [1976]; accord People v. Passino, 25 A.D.3d 817, 818, 807 N.Y.S.2d 210 [2006], lv. denied 6 N.Y.3d 816, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ). Applying these principles, the kidnapping charge could not merge with attempted rape, as defendant was not charged with that crime ( see People v. Cruz, 296 A.D.2d 22, 26–27, 745 N.Y.S.2d 528 [2002], lv. denied 99 N.Y.2d 534, 752 N.Y.S.2d 594, 782 N.E.2d 572 [2002]; People v. Grey, 224 A.D.2d 318, 318, 638 N.Y.S.2d 53 [1996], lv. denied 88 N.Y.2d 985, 649 N.Y.S.2d 392, 672 N.E.2d 618 [1996]; see also People v. Poladian, 189 A.D.2d 911, 912, 592 N.Y.S.2d 810 [1993], lv. denied 81 N.Y.2d 891, 597 N.Y.S.2d 953, 613 N.E.2d 985 [1993] ). As for the robbery convictions, the testimony established that defendant forcibly placed the victim in the minivan, locked the door closest to her, refused her pleas to let her go, threatened her with what appeared to be a deadly weapon, and compelled her to remove her clothing while he transported her approximately 10 miles to a rural, secluded area. As these actions are “exactly the conduct which the Legislature intended to proscribe in enacting the kidnapping statute,” the merger doctrine does not apply ( People v. Van Steenburg, 221 A.D.2d 799, 802, 633 N.Y.S.2d 867 [1995], lv. denied 87 N.Y.2d 978, 642 N.Y.S.2d 207, 664 N.E.2d 1270 [1996]; see People v. Kruppenbacher, 81 A.D.3d at 1170–1171, 917 N.Y.S.2d 405; People v. Passino, 25 A.D.3d at 818, 807 N.Y.S.2d 210; People v. May, 263 A.D.2d 215, 220, 702 N.Y.S.2d 393 [2000], lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624 [2000]; compare People v. Swansbrough, 22 A.D.3d 877, 878, 802 N.Y.S.2d 777 [2005] ).

Next, we reject defendant's contention that County Court should have granted his motion to dismiss the indictment on the ground that it failed to provide sufficient factual specificity to apprise him of the accusations against him ( see CPL 200.50[7][a] ). As a general rule, an indictment is sufficient where the charges use the language of the statutes involved, unless that language is too broad ( see People v. Iannone, 45 N.Y.2d 589, 599, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978]; People ex rel. Best v. Senkowski, 200 A.D.2d 808, 809, 606 N.Y.S.2d 427 [1994], appeal dismissed 83 N.Y.2d 951, 615 N.Y.S.2d 873, 639 N.E.2d 413 [1994]; People v. Laporte, 184 A.D.2d 803, 804, 584 N.Y.S.2d 662 [1992], lv. denied 80 N.Y.2d 905, 588 N.Y.S.2d 831, 602 N.E.2d 239 [1992] ). Here, the indictment used the statutory language and provided additional information as to the location, date and time of the offenses, thus alleging “where, when and what” defendant purportedly did ( People v. Iannone, 45 N.Y.2d at 598, 412 N.Y.S.2d 110, 384 N.E.2d 656 [internal quotation marks and citation omitted] ). Further, the bill of particulars amplified the indictment by supplying additional factual details, including the nature of the dangerous implement that defendant was alleged to have used and the facts underlying the claim that some of the offenses were sexually motivated ( see CPL 200.50[7][a], [b], [e]; People v. Thompson, 27 A.D.3d 888, 889–890, 811 N.Y.S.2d 199 [2006], lv. denied 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982 [2006]; People v. Smith, 7 A.D.3d 917, 918, 776 N.Y.S.2d 528 [2004], lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 20, 817 N.E.2d 838 [2004] ). Accordingly, the People met their obligation to provide defendant with sufficient notice of the accusations against him to enable him to prepare a defense ( see Matter of Taub v. Altman, 3 N.Y.3d 30, 40, 781 N.Y.S.2d 492, 814 N.E.2d 799 [2004] ).

Defendant next contends that his convictions for robbery in the first degree and the corresponding sexually motivated felony were unsupported by legally sufficient evidence and were against the weight of the evidence. We disagree. Upon a challenge to the legal sufficiency of the evidence, “[this C]ourt must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ). Defendant contends that the People failed to prove that the BB gun was loaded and operable or otherwise “readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]; see People v. Swain, 46 A.D.3d 1157, 1158, 848 N.Y.S.2d 726 [2007] ), and thus did not demonstrate that it was a “dangerous instrument” (Penal Law § 160.15[3] ). As defendant notes, there was no evidence that police tested the BB gun to determine whether it was loaded or operable. However, the victim testified that when she fled, she saw defendant point the gun and heard the “pops of a gun,” which she believed were gunshots that just missed her. She further testified that defendant held the gun on her and threatened to shoot her while she was in close proximity to him in the minivan. A police investigator testified that the BB gun was capable of causing serious physical injury or death if shot at close range at a person's eye or temple, or if used as a bludgeon. Viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), this testimony was sufficient to permit a rational finder of fact to conclude that defendant “[u]se[d] or threaten[ed] the immediate use of a dangerous instrument” (Penal Law § 160.15[3]; see People v. Swain, 46 A.D.3d at 1158, 848 N.Y.S.2d 726; compare People v. Wasson, 266 A.D.2d 701, 702, 701 N.Y.S.2d 118 [1999]; People v. Espinoza, 253 A.D.2d 983, 983, 680 N.Y.S.2d 122 [1998] ).

Contrary to defendant's claim, there was legally sufficient proof of his intent...