Opinion
November 28, 1995
Appeal from the Supreme Court, New York County (Michael Corriero, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( People v Bleakley, 69 N.Y.2d 490). Defendant's acts were "imminently dangerous and presented a very high risk of death" to the victim and were "committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind" ( People v Register, 60 N.Y.2d 270, 274, cert denied 466 U.S. 953). Defendant admitted that after the codefendant told him that he wanted to beat up the victim, defendant lured the victim to a pier on 112th Street. Prior to leaving with the codefendant for the meeting, defendant knew that codefendant had twice "jokingly" threatened to kill the victim, and had taken a knife from defendant's home. In accordance with their plan, defendant pretended to be surprised by the codefendant's "sudden" appearance at the pier, and he and the codefendant escorted the victim to an abandoned factory four blocks away. After the codefendant brutally attacked the victim and then left momentarily, defendant, while pretending to help the victim escape, alerted the codefendant. Defendant then accompanied the codefendant and the victim to the fifth floor elevator shaft; defendant acknowledged that he knew that the victim was going to die at that point. After the codefendant pushed the victim down the shaft, defendant subsequently threw dangerous debris on the victim even though he knew that the victim was still alive and had heard his "gasps". The court, as trier of fact, had ample basis to reject defendant's "innocent" explanations of the events, and defendant's claim that he was "intimidated" by the codefendant.
Dismissal of the kidnapping charge is not warranted since the merger doctrine is not applicable to first-degree kidnapping ( see, People v Velez, 206 A.D.2d 258, lv denied 84 N.Y.2d 940). Defendant's complaints about the testimony of the People's expert forensic anthropologist are largely unpreserved ( People v Shavers, 205 A.D.2d 395, lv denied 84 N.Y.2d 939), and we decline to review the unpreserved claims in the interest of justice. As to his preserved claim, we perceive no abuse of discretion in the admission of testimony about the effect of certain head injuries the victim sustained.
Finally, since defendant failed to seek production of some notes which had been made by the forensic anthropologist and mentioned during her direct testimony at trial, his Rosario claim is unpreserved ( People v Torres, 213 A.D.2d 359, lv denied 86 N.Y.2d 784), and since the expert was a consultant to the Medical Examiner's Office, without merit ( see, People v. Washington, 86 N.Y.2d 189). Nor did the People fail to make a good faith effort to comply with their discovery obligations under CPL 240.20 (2), since the prosecutor had no knowledge about the notes ( compare, People v DeGata, 86 N.Y.2d 40).
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Williams, JJ.