People v. Cassidy

• Decision Date: 30 November 1976
• Citation: 358 N.E.2d 870,390 N.Y.S.2d 45,40 N.Y.2d 763
• Parties: , 358 N.E.2d 870 The PEOPLE of the State of New York, Respondent-Appellant, v. Frank CASSIDY, Appellant-Respondent. The PEOPLE of the State of New York, Appellant, v. Ricky USHER, Respondent. The PEOPLE of the State of New York, Appellant, v. Thomas DOLAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 45

390 N.Y.S.2d 45

40 N.Y.2d 763, 358 N.E.2d 870

The PEOPLE of the State of New York, Respondent-Appellant, v. Frank CASSIDY, Appellant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Ricky USHER, Respondent.

The PEOPLE of the State of New York, Appellant, v. Thomas DOLAN, Respondent.

Court of Appeals of New York.

Nov. 30, 1976.

Gerald L. Shargel and John W. Mitchell, New York City, for appellant-respondent Frank Cassidy.

William A. Gogel, Brooklyn, for respondent Ricky Usher.

Joel S. Ezra, New York City, for respondent Thomas Dolan.

Eugene Gold, Dist. Atty., Brooklyn (Barbara L. Linzer, Laurie Stein Hershey and Robert M. Levine, Brooklyn, of counsel), for the People.

JONES, Judge.

In People v. Levy (15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. den. 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701) we held that an abduction in connection with the commission of a robbery would not in all circumstances support a separate charge for kidnapping. ^* The issue now before us is whether that so-called merger doctrine survived the 1967 Revision of the Penal Law with respect to kidnapping in the second degree under new section 135.20 of that law, and if so what should to the consequence of its application to the three cases now before us. We hold that the doctrine did indeed survive the statutory revision, and that it precludes a conviction of kidnapping in the second degree in each of these three cases.

The merger doctrine was of judicial origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where the period of abduction was brief, the criminal enterprise in its entirety appeared as no more than an offense of robbery or rape, and there was lacking a genuine 'kidnapping' flavor (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 135.25, p. 502). In the 1967 Revision of the Penal Law, the Legislature took note of the underlying problem and enacted a provision specifically requiring that for kidnapping in the first degree and abduction must be 'for a period of more than twelve hours'. The People contend that, this legislative solution having been fashioned, there is no longer any occasion for the judicial doctrine. Specifically it is argued in the cases before us that the failure of the Legislature to incorporate in its definition of the crime of kidnapping in the second degree any requirement that the victim be taken a specified distance or confined a specified period of time can only properly be understood as manifesting an intention that prosecutions under that section should go forward without the necessity for any special additional proof with respect to the abduction, free from the constraints of the former merger doctrine. We cannot agree.

True it is that the 12-hour durational requirement of section 135.25 effectively renders application of the merger doctrine unnecessary with respect to prosecution on charges of kidnapping in the first degree. We find nothing in the legislative history nor in reason, however, which compels the conclusion that such Pro tanto solution of the underlying problem was intended by the Legislature to write off the merger doctrine entirely or to eliminate it with respect to prosecutions for kidnapping in the second degree under section 135.20 of the Penal Law. The mere fact that the Legislature elected to require an extended period of detention for the most serious degree of the crime of kidnapping gives rise to no conclusion that it thereby intended every shorter abduction to constitute kidnapping in the second degree, thus abolishing the merger doctrine. If such had been the legislative intent, appropriate words to accomplish such result were readily available. Absent employment of such language, however, we presume that the statute was to be given effect--as it easily may be--consistent with the then outstanding principle of merger previously enunciated in People v. Levy (15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, Supra).

We do not find it compelling that there is now no disparity between the penalties for kidnapping second and robbery or rape first. Although ballooning of the penalty may thereby be said to have been eliminated there remains the comparably objectionable exposure to multiple convictions. We note that the vitality of the doctrine was expressly recognized in People v. Miles (23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688) decided by our court more than 15 months after the Penal Law revision became effective. It is true that the criminal transactions in that case antedated the revision of the Penal Law, but there is nothing in the opinion to suggest that the continued recognition of the doctrine there turned on this circumstance.

The merger doctrine is intended to preclude conviction for kidnapping based on acts 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. 'It is this kind of factual merger with the ultimate crime of the preliminary, preparatory, or concurrent action that the rule is designed to recognize, and thus prevent unnatural elevation of the 'true' crime to be charged. It is a merger suggestive of, but not quite like, the merger of the preparation and attempt with the...