The defendant additionally failed to preserve for appellate review his claim that he was deprived of a fair trial by certain comments made by the prosecutor on summation because he either failed to object to the challenged remarks, or failed to object on the specific grounds raised on this appeal ( seeCPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;People v. Crosdale, 103 A.D.3d 749, 962 N.Y.S.2d 160). In any event, the challenged remarks were fair comment on the evidence, constituted a fair response to defense counsel's summation, or otherwise do not warrant reversal ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Morency, 104 A.D.3d 877, 961 N.Y.S.2d 301;People v. Crosdale, 103 A.D.3d 749, 962 N.Y.S.2d 160;People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293,People v. Torres, 96 A.D.3d 881, 882, 946 N.Y.S.2d 225).
2013-06-18People v. Linvial CrosdaleRead2d Dept.: 103 A.D.3d 749, 962 N.Y.S.2d 160 (Queens) Read, J.Denied.
Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant's unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit (seePeople v. Crosdale, 103 A.D.3d 749, 751, 962 N.Y.S.2d 160 ). The defendant's contention that the County Court improperly considered the charges of which he was acquitted in imposing sentence is unpreserved for appellate review (seePeople v. Morgan, 27 A.D.3d 579, 810 N.Y.S.2d 369 ; People v. Rivers, 262 A.D.2d 108, 691 N.Y.S.2d 488 ).
Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant's unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit (see People v. Crosdale, 103 A.D.3d 749, 751). The defendant's contention that the County Court improperly considered the charges of which he was acquitted in imposing sentence is unpreserved for appellate review (see People v. Morgan, 27 A.D.3d 579; People v. Rivers, 262 A.D.2d 108).
Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant's unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit (see People v Crosdale, 103 A.D.3d 749, 751). The defendant's contention that the County Court improperly considered the charges of which he was acquitted in imposing sentence is unpreserved for appellate review (see People v Morgan, 27 A.D.3d 579; People v Rivers, 262 A.D.2d 108).
Contrary to the defendant's contention, the prosecutor did not effectively become an unsworn expert witness during summation. The prosecutor's comments as to why a child might delay reporting sexual abuse were based on inferences that could reasonably be drawn from the evidence (seePeople v. Willis, 122 A.D.3d 950, 950, 997 N.Y.S.2d 472 ; People v. Crosdale, 103 A.D.3d 749, 750, 962 N.Y.S.2d 160 ; People v. Hilliard, 44 A.D.3d 498, 499, 843 N.Y.S.2d 308 ).Furthermore, the evidence that the defendant had committed a prior sexual assault against the complainant's sister, which resulted in the family mistreating and harassing the sister instead of helping her, was probative of the complainant's state of mind with respect to why the complainant delayed reporting the abuse committed against him (seePeople v. Guagenti, 264 A.D.2d 427, 695 N.Y.S.2d 109 ), and the probative value of this evidence was not outweighed by its prejudicial effect.
"The merger doctrine is intended to preclude conviction for kidnapping or unlawful imprisonment 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 Crosdale, 103 AD3d 749, 751, quoting People v Bussey, 19 NY3d 231, 237; see People v Hanley, 20 NY3d 601, 605; People v Cain, 76 NY2d 119, 124-125; People v Cassidy, 40 NY2d 763, 767; People v Mateo, 148 AD3d 727, 728; People v McFarlane, 106 AD3d 836). "Although each case should be considered independently, a kidnapping is generally deemed to merge with another offense . . . where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous.
Accordingly, I would vacate the conviction of robbery in the first degree and the sentence imposed thereon, and dismiss that count of the indictment. "The merger doctrine is intended to preclude conviction for kidnapping or unlawful imprisonment ‘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. Crosdale, 103 A.D.3d 749, 751, 962 N.Y.S.2d 160, quoting People v. Bussey, 19 N.Y.3d 231, 237, 947 N.Y.S.2d 381, 970 N.E.2d 404 ; see People v. Hanley, 20 N.Y.3d 601, 605, 964 N.Y.S.2d 491, 987 N.E.2d 268 ; People v. Cain, 76 N.Y.2d 119, 124–125, 556 N.Y.S.2d 848, 556 N.E.2d 141 ; People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870 ; People v. Mateo, 148 A.D.3d 727, 728, 48 N.Y.S.3d 712 ; People v. McFarlane, 106 A.D.3d 836, 964 N.Y.S.2d 626 ). "Although each case should be considered independently, a kidnapping is generally deemed to merge with another offense ... where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous.
In any event, the defendant's contention is without merit. The defendant also failed to preserve for appellate review his claim that he was deprived of a fair trial by certain comments made by the prosecutor on summation regarding the video because he failed to object to the challenged remarks (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Crosdale, 103 A.D.3d 749, 750, 962 N.Y.S.2d 160 ). In any event, the challenged remarks were fair comment on the evidence or constituted a fair response to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Simmons, 106 A.D.3d at 1117, 965 N.Y.S.2d 618 ; People v. Morency, 104 A.D.3d 877, 878, 961 N.Y.S.2d 301 ).
The defendant also failed to preserve for appellate review his claim that he was deprived of a fair trial by certain comments made by the prosecutor on summation regarding the video because he failed to object to the challenged remarks (see CPL 470.05[2]; People v Romero, 7 NY3d 911, 912; People v Crosdale, 103 AD3d 749, 750). In any event, the challenged remarks were fair comment on the evidence or constituted a fair response to defense counsel's summation (see People v Halm, 81 NY2d 819, 821; People v Simmons, 106 AD3d at 1117; People v Morency, 104 AD3d 877, 878).