Opinion
July 8, 1985
Appeal from the Supreme Court, Suffolk County (Jaspan, J.).
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. Although much of the evidence was circumstantial, the facts proved excluded to a moral certainty every reasonable hypothesis except that of defendant's guilt ( People v. Benzinger, 36 N.Y.2d 29, 32). Furthermore, defendant's reliance on People v. Usher ( 49 A.D.2d 499, affd 40 N.Y.2d 763) and the merger doctrine is misplaced. Here, as in People v. Dodt ( 92 A.D.2d 1063, 1064, revd on other grounds 61 N.Y.2d 408), "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". We have considered defendant's remaining contentions and find them to be either unpreserved or without merit. Mollen, P.J., Bracken, Niehoff and Rubin, JJ., concur.