People v. Carmichael

• Decision Date: 15 November 1989
• Citation: 547 N.Y.S.2d 786,155 A.D.2d 983
• Parties: PEOPLE of the State of New York, Respondent, v. Donald CARMICHAEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 786

547 N.Y.S.2d 786

155 A.D.2d 983

PEOPLE of the State of New York, Respondent, v. Donald CARMICHAEL, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 15, 1989.

Norman Palmiere, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Before DENMAN, J.P., and BOOMER, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

On this appeal defendant claims that the charge of kidnapping merged with an assault charge (of which he was acquitted), precluding his conviction for kidnapping in the second degree; that evidence that he displayed what appeared to be a firearm was legally insufficient to support his conviction for criminal use of a firearm in the first degree (Penal Law § 265.09[2]; and that the court erred in denying suppression of physical evidence seized during a search of the trunk of defendant's car. We conclude that these claims lack merit.

Where the asportation of a victim for a relatively short time is incidental to a robbery, rape or assault, the kidnapping charge merges into the other substantive crime, precluding a conviction for kidnapping (People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206; People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. denied sub nom. Levy v. New York, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701). The merger doctrine is inapplicable where, as here, the kidnapping was undertaken with an intent to commit murder (see, People v. Miles, 23 N.Y.2d 527, 539, 297 N.Y.S.2d 913, 245 N.E.2d 688, cert. denied sub nom. Miles v. New York, 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467; People v. Kalyon, 142 A.D.2d 650, 651, 530 N.Y.S.2d 591, lv. denied 72 N.Y.2d 1046, 534 N.Y.S.2d 945, 531 N.E.2d 666). Moreover, asportation of the victim was not for the purpose of committing the assault; the assault was a separate crime that arose during the course of the kidnapping (see, People v. Smith, 47 N.Y.2d 83, 416 N.Y.S.2d 784, 390 N.E.2d 291; People v. Kalyon, supra ).

The victim testified that when he was taken to defendant's vehicle, defendant had a gun in his hand and pointed the gun at him. A witness testified that defendant had his hand at his waistband while taking the victim to the car and that when he was apprehended, defendant had two guns in his waistband. Under either version, evidence that defendant displayed a weapon was legally sufficient (see, People v. Lockwood, 52 N.Y.2d 790, 436 N.Y.S.2d 703, 417 N.E.2d 1244; People v. Bynum, 125 A.D.2d 207, 509 N.Y.S.2d 321, affd 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Knowles, 79 A.D.2d 116, 436 N.Y.S.2d 25).

When the victim escaped from defendant's car, he ran to a police vehicle and told the officer that defendant and others were going to kill him and that they had guns and a machine gun. He then pointed to defendant's car. A frisk of defendant revealed two handguns, but further search of the passenger compartment did not uncover a machine gun or any other weapon. Police then opened the trunk of the car and, in examining the contents of a brown plastic bag, found a quantity of cocaine....