Opinion
April 3, 1990
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
On the evening of July 22, 1987, a prostitute, Michelle Stevens, entered the complainant's car while he was stopped in traffic on 45th Street near 10th Avenue in Manhattan, and offered to perform a sexual act for a sum of money. When he declined, Stevens grabbed the complainant's car keys and fled. The complainant pursued Stevens, who called out to two males, one being the defendant, that the complainant had taken $20 from her. Defendant and the second male then approached the complainant and insisted that he would have to produce some money to get his car keys back.
For the next several hours, defendant and Stevens drove the complainant to eight bank cash machines to retrieve money, but he was too nervous to push the buttons correctly. Throughout this period, defendant and Stevens threatened to kill him.
At about 2:00 A.M., complainant was taken to his apartment, where he obtained money and gave defendant and Stevens each $40. Nevertheless, complainant was still not released, but was driven around for another two hours, during which time more threats of death and of mutilation were issued. When complainant saw a police car, he managed to slam his foot on the brake, sending the car out of control and alerting the officers to his plight.
Defendant's principal argument on appeal is that the merger doctrine is applicable. That 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.) The rule "`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, constitute and should constitute a separately cognizable offense'". (Supra, at 767, quoting People v. Miles, 23 N.Y.2d 527, 539, cert denied 395 U.S. 948.)
Applying these principles, we conclude that the merger doctrine will not serve to bar the kidnapping conviction in this case. The record is clear that this abduction was not incidental to the other crimes. The complainant's confinement continued for two hours after the completion of the robbery and larceny, and those two hours were marked by unusual cruelty, including threats of mutilation and a stop in a secluded area, where defendant threatened to kill the complainant while discussing with Stevens the best place to dump his body. (See, People v. Riley, 70 N.Y.2d 523, 532.)
We have considered the other claims raised in this appeal, and find them to be without merit.
Concur — Murphy, P.J., Asch, Kassal and Rubin, JJ.