People v. Castillo

• Decision Date: 03 December 1991
• Citation: 576 N.Y.S.2d 855,178 A.D.2d 113
• Parties: The PEOPLE of the State of New York, Respondent, v. Bienvenido CASTILLO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 855

576 N.Y.S.2d 855

178 A.D.2d 113

The PEOPLE of the State of New York, Respondent, v. Bienvenido CASTILLO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 3, 1991.

Before SULLIVAN, J.P., and MILONAS, WALLACH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J.), rendered January 11, 1990, convicting defendant, after a jury trial, of murder in the first degree, intentional murder in the second degree, two counts of felony murder in the second degree, robbery in the first degree, kidnapping in the second degree, criminal possession of a weapon in the second and third degrees, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third and fourth degrees and sentencing him as follows: concurrent sentences of 25 years to life imprisonment for the four murder counts; 12 1/2 to 25 years for robbery and 8 1/3 to 25 years for kidnapping, each term to run consecutive to all other terms except for the felony murder counts based upon those felonies; 4 to 12 years for sale of narcotics to run consecutive to all counts other than the narcotics possession counts for which defendant received concurrent terms of 4 to 12 years and 3 to 9 years; 5 to 15 years for second degree weapon possession to run consecutive to the sentence imposed on the narcotics sale count; and 2 1/3 to 7 years for third degree weapon possession to run consecutive to all counts other than the sentences imposed for weapons possession and the narcotics possession counts, unanimously modified, on the law, to reverse the convictions for kidnapping and felony murder based upon the kidnapping, to vacate those sentences and to dismiss those counts, and otherwise affirmed.

The People's evidence established that defendant murdered an undercover narcotics police officer in order to thwart an investigation into the narcotics operation he and his codefendants were conducting at an uptown Manhattan apartment. The People proved beyond a reasonable doubt that defendant knew the victim was a police officer and that defendant intended to kill him (PL §§ 125.27[1][a][i], 125.25[1]. Two prosecution witnesses testified that defendant admitted that he knew the victim was a police officer before he shot him. Furthermore, the jury could infer from the circumstances of the shooting that defendant intended to shoot the victim because he was a police officer. A second undercover police officer at the scene of the crime testified that before his partner was shot, both officers had refused to sample defendant's cocaine, defendant's cohort found a gun on him, both officers attempted to escape, and defendant's cohort yelled out, "policia, policia!"

Although the evidence against defendant was otherwise sufficient to sustain these convictions (People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839), his convictions for kidnapping and felony murder based upon the kidnapping cannot stand (People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870). Defendant's act of holding a gun to Hoban's head was integral to his criminal responsibility for both the robbery and kidnapping such that independent criminal responsibility may not be fairly attributed to both crimes (People v. Cassidy, supra at 767, 390 N.Y.S.2d 45, 358 N.E.2d 870). Furthermore, since the manner of detention was not so egregious as to warrant application of the exception to the merger doctrine, we hold that the kidnapping charge merged with the robbery charge (People v. Cassidy, supra at 767, 390 N.Y.S.2d 45, 358 N.E.2d 870), and consequently, defendant's convictions for kidnapping and felony murder based upon the kidnapping must be reversed.

Defendant's codefendant, Manuel Pineda-Ogando, was separately charged with hindering prosecution in the first degree and convicted of hindering prosecution in the third degree. A separate indictment charged codefendant Flavio Prophete with felony...