People v. Cresci

• Decision Date: 08 July 1985
• Citation: 112 A.D.2d 246,491 N.Y.S.2d 695
• Parties: The PEOPLE, etc., Respondent, v. Robert CRESCI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 695

491 N.Y.S.2d 695

112 A.D.2d 246

The PEOPLE, etc., Respondent, v. Robert CRESCI, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 8, 1985.

John F. Middlemiss, Jr., Ronkonkoma (Louise Perrotta of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Patricia A. Harrington, Riverhead, of counsel), for respondent.

Before MOLLEN, P.J., and BRACKEN, NIEHOFF and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered December 6, 1982, convicting him of attempted kidnapping in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant committed the crime of attempted kidnapping in the second degree. Although much of the evidence was circumstantial, the facts proved excluded to a moral certainty every reasonable hypothesis except that of defendant's guilt (People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334). Furthermore, defendant's reliance on People v. Usher, 49 A.D.2d 499, 375 N.Y.S.2d 881, affd. 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870 and the merger doctrine is misplaced. Here, as in People v. Dodt, 92 A.D.2d 1063, 462 N.Y.S.2d 275, 1064, revd. on other grounds 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159, "there was a total absence of any evidence of the commission or attempted commission of any other crime to which the abduction of the victim was incidental or inseparable from, and therefore there was nothing into which the kidnapping could merge". We have considered defendant's remaining contentions and find them to be either unpreserved or without merit.