A Queens Criminal Lawyer said that, these are motions by defendants, made initially at the close of the People’s case and renewed before submission to the jury, inter alia, to dismiss the first two counts of the indictment for Kidnapping in the First Degree. Although the criminal defendants were acquitted of these charges and the lesser included counts of Kidnapping in the Second Degree, the importance of the issue in relation to the improper conduct by the District Attorney in attempting to foreclose application of the merger doctrine warrants consideration of the motion on the merits.
In the morning hours of September 22, 1992, at about 8:20 a.m., the victims left their home on 112th Street and 68th Drive, in Forest Hills, a quiet, residential street, preparing to go to the subway at Queens Boulevard. One was on his way to work in downtown Manhattan, the other to school at New York University. As the two left their home and crossed the street, they were accosted by five Asian males, with guns and knives, who forced them back into the house.
A Queens Gun Criminal Lawyer said that, once inside, the victim was directed to open the front door, at which point two of the five who had stopped him on the street, entered. He and his mother, were taken to the living room, where they were forced to lay on the floor, his hands bound with a dog’s leash and both covered with a blanket or cover, guarded by three of the intruders, one with a knife and one with a gun, while the other victim was taken by the other two to the basement. They told him to cooperate with us, otherwise we are going to kill all of you.” After he opened the safe, on finding no money, only jewelry, defendant told him, “You play game with me? Want money! Money! If you play games with me I’m going to kill all of you.”
A Queens Criminal Felony Lawyer said that, thereupon, the victim went back upstairs, where he retrieved and opened his briefcase, which contained almost $15,000 cash. At that point, he was told to go back downstairs and, on the way, heard a gunshot. He ran back upstairs, where he observed a bullet hole in the floor, between the living room and the dining room, and saw his wife and son guarded by three of the men, one of whom was defendant, who held the larger automatic weapon. After ascertaining that his family was all right, he was told by one of the perpetrators: “Well, if you don’t cooperate we show you it is real. If you don’t cooperate with us the bullets will not go to the floor.”
Once downstairs again, defendant collected the jewelry and stuffed it into his pockets, telling Howard, “We want two hundred thousand dollars. We have to have two hundred thousand dollars. You have a second safe. When he denied having another safe, they began hitting and punching him and pushing him into the wall. At that point, Wong suggested, “Well, if you don’t get two hundred thousand dollars, we going to kill you. You have money in the bank. Go get it. I take your wife, go get the money, and give it to us, we release you. Let your wife get two hundred thousand dollars. Let your wife to get two hundred thousand dollars to give to us and then you go.” It was at that time, apparently, that the police arrived upon the scene, having been summoned to the area by a 911 call from a neighbor. This prompted the intruders to run upstairs to the second floor, where they attempted to escape by fleeing through second story windows, while they ran out through the front door, where they were met by police officers.
To Be Cont
A Queens Criminal Lawyer said that, the perpetrators were chased by the police, who caught three of the five intruders, caught after a chase through backyards, in a garden apartment housing complex, near Forest Hills High School, three or four blocks from the scene.
Defendant was seen tossing a small .25 caliber automatic weapon and his pockets were found stuffed to the point of overflowing with cash and jewelry identified as belonging to the family.
A Queens Gun Criminal Lawyer said that, in addition to the kidnapping counts, the indictment charges robbery, burglary and criminal possession of a weapon, namely, the .45 caliber Colt automatic and the .25 caliber automatic. The indictment, in accordance with the presentment by the District Attorney, and in deliberate fashion, carefully delineates only the father, as the victim of the robbery and burglary, and the mother and son, as the victims of the kidnapping. This is done, notwithstanding that (1) both the victims were accosted on the street and, at gunpoint, both were taken back to the house, (2) all three were actually victims of a robbery in that jewelry and property belonging to all three were taken, (3) all three lived in the home vis-a-vis the burglary charge and, (4) the two automatic weapons were held on all three at different times during the encounter, both on the street and in the house, either in the basement with the victim, or in the living room while they were being guarded.
The issue in this case is whether defendant’s guilt has been established beyond reasonable doubt.
The Court had reserved decision on the motions and, notwithstanding the verdict, now grants the motions at the close of the case, upon the prosecution’s failure to establish, beyond a reasonable doubt, the requisite elements of Kidnapping in the First Degree. The lesser included charges of Unlawful Imprisonment in the First Degree are dismissed under the merger doctrine as inseparable from the underlying crimes of robbery and burglary and the criminal verdict vacated only to that extent.
Plainly, this was done, or so it appears, to isolate the kidnapping charge as directed only against the mother and son, who, under the indictment, were not the victims of any other charged crime. In this manner, so argues the District Attorney, there can be no merger, since, under this indictment, there is no underlying crime into which kidnapping may be merged.
While, on the surface, the argument has some simplistic appeal, under the facts of this case, it would exalt form over substance and would be inconsistent with an individual’s right to be dealt with fairly, especially in terms of governmental prosecutions. At issue is whether a prosecutor may properly “juggle” the charges in the criminal indictment in relation to the victims to eliminate certain charges vis-a-vis certain victims and thereby avoid the legal consequences of the merger doctrine.
The merger doctrine was a judicially created response to the harsh consequences of former Penal Law 1250(1), which, in substance, defined kidnapping as confining another against the victim’s will and provided for a minimum sentence of 20 years to life. To prevent this harsh result in cases which, actually, amounted to a robbery, a rape, or some other underlying crime, but which did involve some degree of restraint, the Court of Appeals held that, where the restraint was part and parcel of some underlying crime, usually a robbery or rape, it would not escalate the crime to kidnapping, which.
Although the harshness of the prior kidnapping statute was somewhat ameliorated by the enactment of the present Penal Law 135.00, et seq., the Court of Appeals sustained the continued viability of the merger doctrine wherein it held that, if it was the intention of the Legislature to require an extensive period of detention in order to constitute a kidnapping, or to abolish the merger principle by dividing kidnapping into various degrees, this could have been readily accomplished by clear, explicit legislative provision. In the absence of such language, it should be presumed that the Legislature intended the statute to be interpreted consistent with the merger doctrine.
In terms of the applicable law, it has also been held that the merger doctrine is inapplicable to Kidnapping in the First Degree and only applies to Criminal Kidnapping in the Second Degree. In the present situation, notwithstanding the segregation of charges in the indictment, all three complainants were actually the victims of both the robbery and the burglary. Although, conceivably, a factual situation may properly fall within different criminal provisions so as to constitute separate and distinct acts, in my view, it would be improper prosecutorial zeal to manipulate the facts to isolate and segregate the victims in relation to the crimes charged, as may have occurred here. That this may have been the intention of the District Attorney in this case appears from the absence of any criminal charge concerning restraint or attempted kidnapping as to, the father, with the requisite extortion element the suggestion or direction that the wife is sent to get $200,000 to secure her husband’s release. Although the criminal acts in this case were in their infancy when the police arrived on the scene, the foregoing restraint is the clearest and most direct indication of what could have been designated an attempted kidnapping on this record. The fact that it was thwarted by the simultaneous arrival of the police is without dispositive effect.
In the present case, however, the situation is quite different. Here, there were one continuous criminal activity directed at all three complainants, as occupants of the subject premises. Father and son were accosted on the street and were taken inside, where mother and son were segregated in one room and the father was led around the house in search of money and property. At one time or another, the two automatic weapons were held on all three. Plainly, all were victims of the burglary and, to the extent the mother’s and son’s property was taken, they were also victims of a robbery, albeit they were sequestered in another room at the time.
The only basis for sustaining this factual scenario as representing a burglary-robbery vis-a-vis the father and a separate kidnapping, insofar as concerns the mother and son, is the imaginative manner by which the indictment was created to pose, in two neat, tidy packages, a burglary-robbery as to the father, and a kidnapping as to the mother and son. This approach, however, overlooks the actual facts as they unfolded. It also fails to perceive that, while the situation might have escalated into an actual kidnapping, the arrival of the police intervened. Clearly, under the facts of this case, there was no extortion at the time the police arrived. Inasmuch as, at that time, the extortion and the robbery were one and the same, we do not have two separate, independent crimes. Moreover, as stated, the manner by which the indictment was crafted, in avoidance of the legal and equitable principle underlying the merger doctrine, is improper and transcends the prosecutorial role, which does carry with it a degree of fairness in terms of the public.
Notwithstanding the wide latitude and discretion accorded to the prosecutor in terms of the charges to be presented to a Grand Jury, in my view, it is improper to withhold from the grand jurors’ consideration certain crimes in relation to certain victims in order to avoid the legal consequences which flow from application of the merger doctrine. This, to some degree, impinges upon the function and prerogative of the Criminal Grand Jury, both in terms of its investigatory role and in determining which charges are to be included in an indictment.
Accordingly, the court held that upon the foregoing, the first two counts for Kidnapping in the First Degree, which are actually part and parcel of the burglary-robbery, are dismissed, notwithstanding the verdict, as are the lesser included counts for Unlawful Imprisonment in the First Degree, as having merged in the robbery and burglary charges.
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