People v. Mateo

• Decision Date: 01 March 2017
• Citation: 48 N.Y.S.3d 712,148 A.D.3d 727
• Parties: The PEOPLE, etc., respondent, v. Domingo MATEO, appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 727
48 N.Y.S.3d 712

The PEOPLE, etc., respondent,
v.
Domingo MATEO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 1, 2017.

48 N.Y.S.3d 713

Lynn W.L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant.

48 N.Y.S.3d 714

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jill A. Gross–Marks of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

148 A.D.3d 727

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered February 20, 2013, convicting him of murder in the second degree (three counts), kidnapping in the first degree, kidnapping in the second degree, burglary in the first degree (three counts), robbery in the first degree (three counts), and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is modified, on the law, by vacating the 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.

The defendant's contention that the evidence was legally insufficient to support his conviction of kidnapping in the first degree (Penal Law § 135.25 [3] ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of that crime beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that

148 A.D.3d 728

count was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Contrary to the People's contention, the defendant's contention that his conviction of kidnapping in the second degree is precluded by the merger doctrine is preserved for appellate review (see People v. Banks, 42 A.D.3d 574, 575–576, 840 N.Y.S.2d 137 ; see also People v. Morales, 148 A.D.2d 325, 326–327, 538 N.Y.S.2d 541 ). Moreover, the contention has merit. 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’ " (People v. Bussey, 19 N.Y.3d 231, 237, 947 N.Y.S.2d 381, 970 N.E.2d 404, quoting People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870 ; see People v. Hanley, 20 N.Y.3d 601, 605, 964 N.Y.S.2d 491, 987 N.E.2d 268 ; People v. Crosdale, 103 A.D.3d 749, 751, 962 N.Y.S.2d 160 ). "[A] kidnapping is generally deemed to merge with another offense only ‘where there is minimal asportation immediately preceding’ the other crime or ‘where the restraint and underlying crime are essentially simultaneous' " (People v. Hanley, 20 N.Y.3d at 606, 964 N.Y.S.2d 491, 987 N.E.2d 268, quoting People v. Gonzalez, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 603 N.E.2d 938 ). Here, the defendant's restraint of the victim and commission of the underlying crimes of burglary in the first degree and robbery in the first and second degrees were essentially simultaneous. Contrary to the People's contention, the manner in which the victim was restrained did not

48 N.Y.S.3d 715

preclude application of the merger doctrine (cf. People v. Gonzalez, 80 N.Y.2d at 153, 589 N.Y.S.2d 833, 603 N.E.2d 938 ; People v. Rivera, 41 A.D.3d 740, 741, 838 N.Y.S.2d 171 ; People v. Esposito, 135 A.D.2d 727, 522 N.Y.S.2d 629 ). Accordingly, we vacate the defendant's conviction of kidnapping in the second degree and the sentence imposed thereon, and dismiss that count of the indictment (see People v. Garnes, 127 A.D.3d 1104, 1105, 6 N.Y.S.3d 666 ; People v. McFarlane, 106 A.D.3d 836, 964 N.Y.S.2d 626 ; People v. Alston, 279 A.D.2d 583, 584, 719...