People v. Tocco

• Decision Date: 07 October 1985
• Citation: 114 A.D.2d 385,493 N.Y.S.2d 902
• Parties: The PEOPLE, etc., Respondent, v. Robert TOCCO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 902

493 N.Y.S.2d 902

114 A.D.2d 385

The PEOPLE, etc., Respondent, v. Robert TOCCO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 7, 1985.

John F. Clennan, Centereach, for appellant.

Robert Tocco, pro se.

Patrick Henry, Dist. Atty., Riverhead (Patricia A. Harrington, of counsel), for respondent.

Before LAZER, J.P., and O'CONNOR, NIEHOFF and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered December 6, 1982, convicting him of attempted kidnapping in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant committed the crime of attempted kidnapping in the second degree. Furthermore, defendant's reliance on the merger doctrine is misplaced. Here, as in People v. Dodt 92 A.D.2d 1063, 1064, 462 N.Y.S.2d 275, revd. on other grounds 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159, "there was a total absence of any evidence of the commission or attempted commission of any other crime to which the abduction of the victim was incidental or inseparable from, and therefore there was nothing into which the kidnapping could merge".

Defendant has failed to preserve for appellate review the issue of whether certain expert testimony was properly admitted. In any event, it was not error to admit the testimony in question (see, People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735).