People v. Smith
| Decision Date | 08 May 1979 |
| Citation | 390 N.E.2d 291,47 N.Y.2d 83,416 N.Y.S.2d 784 |
| Parties | , 390 N.E.2d 291 The PEOPLE of the State of New York, Respondent, v. Larry SMITH, also known as Edward Charles Smith, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
A jury convicted the defendant, Larry Smith, of robbery in the first degree (Penal Law, § 160.15, subd. 2), possession of a weapon as a felony (Penal Law, § 265.05, subd. 2), defacement of a weapon (Penal Law, § 265.10, subd. 6), and unlawful imprisonment in the first degree (Penal Law, § 135.10). The Appellate Division unanimously modified by reversing the conviction for possession of a weapon, as an inclusory concurrent count as to the robbery, and otherwise affirmed. Leave to appeal was granted the defendant. The principal issue is whether under the facts presented the crime of unlawful imprisonment merged into the robbery offense. We hold that on this record no merger occurred.
In the early morning hours of June 16, 1974 the victim, Bivens, an off duty part-time police officer, was driving from Queens to his home in Freeport. At 1:30 a. m. while stopped at a traffic light his car was approached by Regina Jones 1 and the defendant, Larry Smith. Smith put a revolver to Bivens' head and demanded his money. After being handed $22, Smith, who entered the back seat of the car, directed Jones to get into the front seat. Smith then threatened to kill Bivens while Jones reached into Bivens' pockets removing some change, keys and his driver's license, and looked through the glove compartment. Then Smith demanded and was given the victim's wallet. At this point, still brandishing the revolver, Smith ordered Bivens to start driving. After about one hour had passed, Smith told the victim to stop, and fled with his accomplice.
Defendant, arguing that the unlawful imprisonment charge merged into the robbery, notes that the merger doctrine applies to kidnapping in the second degree. 2 From this point, defendant reasons that as a lesser included offense of second degree kidnapping, unlawful imprisonment must of necessity be subject to the merger principle as well. Finally, defendant asserts that "under the facts in this case a charge of kidnapping would have merged into the robbery". Hence, according to the defendant, the unlawful imprisonment necessarily merged.
Initially it is noted that we need not decide at this time whether the merger doctrine applies in principle to unlawful imprisonment, for under the facts of this case no merger could be deemed to have occurred.
It is true, as defendant contends, that the merger doctrine was created to avoid prosecutions for kidnapping where the conduct underlying the charge constituted an inseparable part of another crime (People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842). As we recently noted, "(t)he 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. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 47, 358 N.E.2d 870, 873; People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206).
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