People v. Johnson

• Decision Date: 30 March 1992
• Citation: 181 A.D.2d 914,581 N.Y.S.2d 850
• Parties: The PEOPLE, etc., Respondent, v. Jonathan JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 850

581 N.Y.S.2d 850

181 A.D.2d 914

The PEOPLE, etc., Respondent, v. Jonathan JOHNSON, Appellant.

Supreme Court, Appellate Division Second Department.

March 30, 1992.

Philip L. Weinstein, New York City (Pamela Peters, of counsel), for appellant.

Jonathan Johnson, pro se.

Richard A. Brown, Dist. Atty., Kew Gardens (Annette Cohen and Elizabeth Fox, of counsel), for respondent.

Before THOMPSON, J.P., and ROSENBLATT, LAWRENCE and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered October 20, 1988, convicting him of kidnapping in the second degree and attempted rape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing the defendant's conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932; People v. Bracey, 41 N.Y.2d 296, 302, 392 N.Y.S.2d 412, 360 N.E.2d 1094). The evidence was such that the jury could infer the defendant's intent to rape from his conduct and the surrounding circumstances, and could find that he acted to carry his objective forward within dangerous proximity to the criminal end to be attained (see, People v. Pereau, 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217; People v. Bracey, supra, 41 N.Y.2d at 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Werblow, 241 N.Y. 55, 61, 148 N.E. 786). The defendant's assertion that the facts demonstrated a reasonable possibility that he intended to commit the crimes of assault or robbery rather than rape is without merit (see People v. Kelly, 166 A.D.2d 195, 564 N.Y.S.2d 79; People v. Glover, 107 A.D.2d 821, 484 N.Y.S.2d 659, affd. 66 N.Y.2d 931, 498 N.Y.S.2d 796, 489 N.E.2d 765, cert. denied 476 U.S. 1161, 106 S.Ct. 2283, 90 L.Ed.2d 724). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt on this charge was not against the weight of the evidence (see, CPL 470.15[5].

However, because the abduction of the complainant was entirely incidental to the attempted rape, the kidnapping conviction should properly have been dismissed as having merged with the underlying substantive offense (see, People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870; People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, cert. denied 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467; People v. Gonzalez, 171 A.D.2d 127, 575 N.Y.S.2d 75; People v. Scattareggia, 152 A.D.2d 679, 543 N.Y.S.2d 742). The complainant was forced into a car at gunpoint and driven only a few blocks before she fought her way out of the car and the defendant sped off. Given these facts,...