People v. Grey

• Decision Date: 22 February 1996
• Citation: 638 N.Y.S.2d 53,224 A.D.2d 318
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyshan GREY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 53

638 N.Y.S.2d 53

224 A.D.2d 318

The PEOPLE of the State of New York, Respondent, v. Tyshan GREY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 22, 1996.

R. Feinberg, for respondent.

F. Karam, for defendant-appellant.

Before SULLIVAN, J.P., and ELLERIN, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 15, 1993, convicting defendant, after jury trial, of kidnapping in the second degree, robbery in the first degree, and two counts each of robbery in the second degree and assault in the second degree, and sentencing him to concurrent terms of 6 to 18 years on the kidnapping and first-degree robbery convictions, and 2 1/3 to 7 years on the remaining convictions, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), the People proved beyond a reasonable doubt that defendant intended to aid the codefendant in the robbery of the victim by acting as lookout and displaying a knife to ensure the victim's capitulation. According due deference to the jury's credibility determinations, the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant did not preserve his current claim that the merger doctrine is applicable in this case (CPL 470.05; People v. Velez, 206 A.D.2d 258, 258-259, 614 N.Y.S.2d 504, lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237). In any event, defendant may not properly invoke the merger doctrine in connection with attempted rape, as defendant was not charged with that crime. Further, the merger doctrine does not apply in the circumstances herein, where the kidnapping was not incidental to the crimes charged and was carried out through unnecessarily cruel methods (People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870).

The trial court properly assumed an active role in the proceedings during the defense summation to assure clarification of the issues before the jury (People v. Jamison, 47 N.Y.2d 882, 419 N.Y.S.2d 472, 393 N.E.2d 467). In this connection, the trial court appropriately exercised its discretion in denying defendant's motion for a mistrial and in giving an immediate instruction to the...