Opinion
February 10, 1999
Appeal from Judgment of Herkimer County Court, Kirk, J. — Kidnapping, 2nd Degree.
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal trespass in the second degree (Penal Law § 140.15), kidnapping in the second degree (Penal Law § 135.20), assault in the second degree (Penal Law § 120.05) and other crimes arising from his attack on his estranged wife. Defendant went to her house, forced his way through the locked door, and choked her until she momentarily lost consciousness. Defendant then tied her hands together with rope and placed her in the trunk of a car. After driving for a short time, defendant lost control of the car, which landed in a ditch. Defendant brought his wife to the front seat, telephoned for help and told her that he was going to commit suicide. The police arrived, and defendant surrendered.
We reject defendant's contention that the kidnapping conviction is not supported by legally sufficient evidence. By tying his wife's hands and placing his wife in the trunk of the car, defendant "inten[ded] to prevent [her] liberation by * * * secreting or holding [her] in a place where [s]he [was] not likely to be found" (Penal Law § 135.00 [a]; see, Penal Law § 135.20; People v. Balcom, 171 A.D.2d 1028, lv denied 78 N.Y.2d 920). We further reject defendant's contention that the merger doctrine applies. That doctrine is applicable only when the restraint is "'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. Gonzalez, 80 N.Y.2d 146, 153, quoting People v. Cassidy, 40 N.Y.2d 763, 767; see, People v. Moore, 154 A.D.2d 929, lv denied 75 N.Y.2d 773). Here, the assault and kidnapping charges were discrete; the assault had been completed before the kidnapping occurred (see, People v. Gonzalez, supra, at 153; People v. Smith, 47 N.Y.2d 83, 87; People v. Chronis, 209 A.D.2d 712, lv denied 84 N.Y.2d 1030).
Defendant contends that defense counsel's failure to pursue a psychological defense deprived him of effective assistance of counsel. We disagree. There is nothing in the record to support that defense (see, People v. Moyle, 188 A.D.2d 751, 752). Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147). Defendant's sentence is neither unduly harsh nor severe. Finally, we have considered the issues raised in defendant's pro se supplemental brief and conclude that they are without merit.