People v. Pellot

• Decision Date: 31 December 1984
• Parties: The PEOPLE, etc., Respondent, v. George PELLOT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 409

483 N.Y.S.2d 409

105 A.D.2d 223

The PEOPLE, etc., Respondent, v. George PELLOT, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1984.

William E. Hellerstein, New York City (Karen Goldstein, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Karen M. Wigle and Allan P. Root, Brooklyn, of counsel), for respondent.

Before LAZER, J.P., and BROWN, BOYERS and EIBER, JJ.

LAZER, Justice Presiding.

At issue here is the current status of the merger doctrine as it relates to the crime of kidnapping in the first degree as defined in subdivision 3 of section 135.25 of the Penal Law. More specifically, we must determine whether the merger doctrine precludes such a kidnapping conviction based upon an abduction which lasted less than two minutes but resulted in the victim's death. We conclude that the legislative history and internal structure of article 135 of the Penal Law, together with the purpose and rationale of the merger doctrine, render the merger doctrine inapplicable to the crime of kidnapping in the first degree.

Evidence adduced at the trial proved beyond a reasonable doubt that on the evening of January 6, 1979, defendant and an accomplice--armed with a shotgun and a handgun--accosted Luis Marrero and Eduardo Vega on a public street around the block from Marrero's home. Pointing the weapons at Marrero and Vega, they demanded information concerning the whereabouts of "Chino". Vega professed ignorance but Marrero indicated that he knew where Chino was to be found. Defendant and his accomplice then compelled Marrero to accompany them at gunpoint in the direction of his home, leaving Vega behind. Approximately a minute later, Marrero ran back down the street towards Vega, two shots were heard, and Marrero fell against a spiked fence. Marrero's death was caused by multiple penetrating wounds in the chest and thigh which turned out to be too deep to have been caused by the spiked fence. He sustained no gunshot wounds.

Defendant was subsequently indicted for the crimes of kidnapping in the first degree, murder in the second degree (two counts), criminal use of a firearm in the second degree (two counts) and criminal possession of a weapon in the second degree (two counts). Following a jury trial, he was convicted of kidnapping in the first degree, manslaughter in the first degree and criminal possession of a weapon in the second degree. He was sentenced to a term of 25 years to life on the kidnapping conviction, 8 1/3 to 25 years for the manslaughter and 5 to 15 years for the weapons conviction, with all terms to be served concurrently.

The defendant's prime attack is upon his kidnapping conviction, which--he contends--should be set aside and the corresponding count of the indictment dismissed. Although defendant's conduct clearly falls within the language of the statute defining the crime of kidnapping in the first degree (Penal Law, § 135.25, subd. 3), he argues that the acts that comprised the purported kidnapping were incidental to and therefore merged with the crime of murder of which he was also charged, or the crime of manslaughter, of which he was convicted. The essence of his argument is that the period of detainment was so brief and the asportation so limited, that no true kidnapping took place. Defendant thus bases his claim upon the kidnap merger doctrine first enunciated by the Court of Appeals in People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. den. 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 and since firmly established in numerous other holdings (see, e.g., People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870; People v. India, 67 A.D.2d 488, 415 N.Y.S.2d 837; People v. Brinson, 55 A.D.2d 844, 390 N.Y.S.2d 335; see, also, Shapiro, Seizure or Detention for Purpose of Committing Rape, Robbery or Similar Offense as Constituting Separate Crime of Kidnapping, Ann., 43 A.L.R.3d 699). The merits of these contentions are what we now consider.

I.

It has long been the law of this State that "the detention inevitably occurring during the immediate act or commission of such a crime as rape or robbery not form a basis for a separate crime of kidnapping" (People v. Florio, 301 N.Y. 46, 49, 92 N.E.2d 881, emphasis supplied). This early predecessor to the modern merger doctrine was of limited benefit to defendants, however, since it did not bar a kidnapping conviction if the restraint or asportation was in any way greater than that which is inherent in almost any crime of actual or threatened violence against the person. Its effect was simply to prevent that restraint which occurs in every robbery, rape or assault from being considered a kidnapping (compare People v. Florio, 301 N.Y. 46, 92 N.E.2d 881, supra, with People v. Koslow, 6 A.D.2d 713, 174 N.Y.S.2d 709; see Proposed New York Penal Law, New York Comm. on Rev. of Penal Law and Crim Code, Commission Staff Notes, former art. 140 Kidnapping As Separate Crime, Ann., 17 A.L.R.2d 1003). Defendant Pellot's actions clearly constitute a kidnapping under this rule. People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, supra, marked an expansion of the principle and established the present kidnap merger doctrine. There, the Court of Appeals reversed the kidnapping convictions of three defendants who had invaded a car occupied by a married couple, forced them into the back seat at gunpoint, and proceeded to rob them while driving aimlessly around the streets of Manhattan for about 20 minutes. Although recognizing that both asportation and detention were proven, the court concluded that no separate crime of kidnapping had been committed because the restraint involved was merely a part of the robbery. Expressing concern lest the kidnapping statute be interpreted so broadly as to impose its extremely harsh sanctions on persons who were essentially guilty only of some less serious crime, the Levy court reasoned that the kidnapping statute should be limited "to 'kidnapping' in the conventional sense in which that term has now come to have acquired meaning" (15 N.Y.2d 159, 164-165, 256 N.Y.S.2d 793, 204 N.E.2d 842, supra ).

The kidnapping merger doctrine has since been applied to bar kidnapping prosecutions in a broad range of factual patterns, despite the fact that the underlying actions did fall literally within the ambit of the kidnapping statute, on the ground that the statute should not be applied "to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident" (People v. Lombardi, 20 N.Y.2d 266, 270, 282 N.Y.S.2d 519, 229 N.E.2d 206).

The doctrine was further refined and to some extent limited in People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, cert. den. 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467, in which the Court of Appeals affirmed the kidnapping convictions of several defendants who, after beating their victim and injecting him with hot lye in an attempt to kill him in New Jersey, placed the victim, whom they believed to be dead or dying, in the trunk of a car and proceeded to drive around in a futile attempt to dispose of the body until they were apprehended and their still living victim was rescued by the police in New York City. The entire incident lasted approximately five hours.

The court's refusal to apply the merger doctrine in Miles is not entirely free of ambiguity, but it does appear that the decision was premised upon at least three distinct grounds. Initially, the court noted that the complicated nature of the asportation distinguished Miles from the prior cases. More importantly, the court declared that to the extent the kidnapping could be viewed as a kidnapping with intent to accomplish a murder, the merger doctrine was simply unavailable because it was not "intended to exclude from 'traditional' or 'conventional' kidnapping abductions designed to effect extortions or accomplish murder" (People v. Miles, 23 N.Y.2d 527, 539, 297 N.Y.S.2d 913, 245 N.E.2d 688, supra ). To the extent that the facts proven in Miles might not establish a kidnapping intended to accomplish a murder, the court reasoned that in any event the kidnap merger rule was not applicable because it "has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitutes and should constitute a separately cognizable offense" (23 N.Y.2d 527, 539, 297 N.Y.S.2d 913, 245 N.E.2d 688, supra; see, also, People v. Laskaris, 34 N.Y.2d 590, 354 N.Y.S.2d 948, 310 N.E.2d 544).

II.

The decisions in Levy, Lombardi and Miles all involved convictions under section 1250 of the Penal Law of 1909, since repealed (see L.1965, ch. 1030). The relevant portion of that statute provided that:

"A person who wilfully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will; or

"2. Leads, takes, entices away, or detains a child under the age of sixteen years, with intent to keep or conceal it from its parents, guardian, or other person having the lawful care or control thereof, or to extort or obtain money or reward for the return or disposition of the child, or with intent to steal any article about or on the person of the child; or

"3. Abducts, entices, or by force or fraud unlawfully takes, or carries away another, at or from a place without the state, or procures, advises, aids or abets such an abduction, enticing, taking, or carrying away, and afterwards sends, brings, has or keeps such person, or causes him to be kept or secreted within this state,

"Is guilty of kidnapping."

The minimum penalty for kidnapping, unless ...