People v. Salimi

• Decision Date: 19 March 1990
• Citation: 159 A.D.2d 658,552 N.Y.S.2d 964
• Parties: The PEOPLE, etc., Respondent, v. Mirwais SALIMI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 964

552 N.Y.S.2d 964

159 A.D.2d 658

The PEOPLE, etc., Respondent, v. Mirwais SALIMI, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 19, 1990.

Philip L. Weinstein, New York City (Beverly Van Ness, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ivan Vogel, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered June 10, 1987, convicting him of kidnapping in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant asserts that his conviction for kidnapping in the second degree is barred by the judicially-created merger doctrine, which precludes a conviction for kidnapping based on acts which are integrally related but subordinate to another substantive crime (see, People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d 1280; People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870). Having failed to challenge the jury's verdict on this basis before the trial court, the defendant has not preserved this claim for appellate review (see, People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9; People v. Wilsey, 99 A.D.2d 877, 472 N.Y.S.2d 475). The additional procedural obstacle upon which the People urge this court to decline to address the defendant's argument, specifically, that since the defendant was convicted solely of the kidnapping, the merger doctrine properly could not be invoked, is unavailing. Unlike the situations in People v. Rios, 60 N.Y.2d 764, 766, 469 N.Y.S.2d 670, 457 N.E.2d 776 or People v. Pellot, 105 A.D.2d 223, 229-230, 483 N.Y.S.2d 409, where the defendants were charged only with a kidnapping and, hence, the doctrine could not apply since there existed no other crime with which the kidnapping could merge (see also, People v. Kalyon, 142 A.D.2d 650, 530 N.Y.S.2d 591), here, as in People v. Usher, 49 A.D.2d 499, 375 N.Y.S.2d 881, affd. 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870, the defendant was charged with substantive crimes, specifically, robbery and sexual abuse, with which the kidnapping could, in the appropriate circumstances, merge, despite his acquittal thereon (cf., People v. Kalyon, supra ). The defendant's claim is, in any event, without merit. His restraint and asportation of the complainant were accomplished by acts which were not merely incidental to and inseparable from acts which the People alleged constituted a robbery or sexual assault (see, People v. Wilsey, 99 A.D.2d 877, 472 N.Y.S.2d 475, supra ).

The defendant's challenge of the evidence supporting his conviction as legally insufficient for the failure of proof regarding the element of "abduction" (Penal Law §§ 135.00, 135.20) is similarly unpreserved for this court's review (see, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Udzinski, 146 A.D.2d 245, supra, at 250, 541 N.Y.S.2d 9). This claim is, in any event, without merit, since, viewing the evidence adduced at trial...