People v. McCray

Decision Date09 February 1978
Citation61 A.D.2d 860,401 N.Y.S.2d 908
CourtNew York Supreme Court — Appellate Division
PartiesThe PEOPLE of the State of New York, Respondent, v. Jerry Dale McCRAY, Appellant.

Peter L. Yellin, Broome County Public Defender, Binghamton (James M. Zaccaria, Binghamton, of counsel), for appellant.

Patrick D. Monserrate, Broome County Dist. Atty., Binghamton (James R. Peterson, New York City, of counsel), for respondent.

Before GREENBLOTT, J. P., and SWEENEY, STALEY, MAIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Broome County, rendered November 30, 1976, upon a verdict convicting defendant of the crimes of burglary in the first degree (two counts), assault in the second degree (three counts), criminal possession of a weapon in the second degree, kidnapping in the second degree and unlawful imprisonment in the first degree.

The convictions herein arose out of an incident which occurred in the early morning of May 15, 1976 in the Town of Sanford, Broome County, wherein defendant unlawfully entered a mobile home, physically assaulted the two occupants thereof and, subsequently, in an attempt to escape capture, seized a State Police Officer and held him as a hostage at gunpoint for approximately 45 minutes. Ultimately defendant was sentenced to concurrent 5 to 15-year terms on the two burglary counts to run concurrently with 0 to 5-year terms on the three assault counts and the weapons charge. He was also given a consecutive term of 5 to 15 years on the kidnapping conviction to be served concurrently with a 0 to 3-year term on the unlawful imprisonment charge. On this appeal, he makes several contentions which we shall consider seriatim.

Initially, we find that defendant was properly convicted of kidnapping in the second degree (Penal Law, § 135.20). The charge to the jury in this regard was correct, and, contrary to defendant's contention, the " merger doctrine" as enunciated in People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870 is inapplicable to the situation here because the kidnapping occurred subsequent to the burglary and the assaults and was not necessary for the commission of those offenses (see People v. Shay, App.Div., 400 N.Y.S.2d 383 (1977)). As to the quantum of evidence, an abduction by means of the threatened use of deadly physical force was amply demonstrated (Penal Law, §§ 135.00, 135.20), and the conviction should, therefore, stand. This result, as both parties agree, mandates the dismissal of the unlawful imprisonment count (Penal Law, § 135.10) as a lesser included offense of the kidnapping count, and we likewise agree with defendant that the criminal possession of a weapon charge must be dismissed since, under the circumstances here, he could not have committed the kidnapping without also having been guilty of the weapon possession charge (People v. Williams, 57 A.D.2d 850, 394 N.Y.S.2d 36).

Turning now to the burglary counts, we find that they were satisfactorily proven and cannot agree with defendant that there was insufficient evidence to establish that the burglary occurred at night as required by section 140.30 of the Penal Law. Although no evidence of the time of sunrise was produced at trial, this court can take judicial notice that sunrise in the Town of Sanford on May 15, 1976 was at approximately 5:39 A.M. (21 N.Y.Jur., Evidence, §§ 18, 84), and it may be presumed that the jurors, as members of the local community, were generally aware of sunrise time (People v. Wozniak, 167 Cal.App.2d 448, 334 P.2d 689). Considering these...

To continue reading

Request your trial
12 cases
  • People v. Gonzalez
    • United States
    • New York Supreme Court — Appellate Division
    • September 30, 1991
    ...975, 416 N.Y.S.2d 102; People v. Wilsey, 99 A.D.2d 877, 472 N.Y.S.2d 475 [sexual abuse], or burglary and assault (People v. McCray, 61 A.D.2d 860, 401 N.Y.S.2d 908). Similarly, kidnapping (or unlawful imprisonment *) does not merge where the restraint The application of the merger doctrine ......
  • Citibank (South Dakota), N.A. v. Cigna
    • United States
    • New York Civil Court
    • February 2, 2021
    ...Corp. v International Ins. Co., 240 App Div 80, 269 N.Y.S. 351, affd 265 N.Y. 574, 193 N.E. 326 ) or sunrise times ( People v McCray, 61 A.D.2d 860, 401 N.Y.S.2d 908 ; see generally, 9 Wigmore, Ev idence § 2565, at 694 [Chadbourn rev ed]). In some instances, and under certain circumstances,......
  • A.P. v. F.L., 471/2012.
    • United States
    • New York Supreme Court
    • November 15, 2017
    ...see also Santiago, 64 A.D.2d at 357 FN1; Brown v. McCullough, 240 AD 381, 382 [1st Dept 1934] ; People v. McCray, 61 A.D.2d 860, 861 [3rd Dept 1978] ); LGS Realty Partners LLC v. Kyle & Nikitin, 43 Misc.3d 1220[A], 5 FN1 [Civil Ct, N.Y. County 2014] ). Furthermore, the court rejects Plainti......
  • Ptasznik v. Schultz
    • United States
    • New York Supreme Court — Appellate Division
    • November 9, 1998
    ...Corp. v. International Ins. Co., 240 App.Div. 80, 269 N.Y.S. 351, affd. 265 N.Y. 574, 193 N.E. 326) or sunrise times (People v. McCray, 61 A.D.2d 860, 401 N.Y.S.2d 908; see generally, 9 Wigmore, Evidence § 2565, at 694 [Chadborune rev. ed.] In some instances, and under certain circumstances......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT