Opinion
March 30, 1992
Appeal from the Supreme Court, Queens County (Farlo, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reversing the defendant's conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt (see, People v Contes, 60 N.Y.2d 620, 621; People v Bracey, 41 N.Y.2d 296, 302). The evidence was such that the jury could infer the defendant's intent to rape from his conduct and the surrounding circumstances, and could find that he acted to carry his objective forward within dangerous proximity to the criminal end to be attained (see, People v Pereau, 64 N.Y.2d 1055; People v Bracey, supra, at 301; People v Werblow, 241 N.Y. 55, 61). The defendant's assertion that the facts demonstrated a reasonable possibility that he intended to commit the crimes of assault or robbery rather than rape is without merit (see, People v Kelly, 166 A.D.2d 195; People v Glover, 107 A.D.2d 821, affd 66 N.Y.2d 931, cert denied 476 U.S. 1161). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt on this charge was not against the weight of the evidence (see, CPL 470.15).
However, because the abduction of the complainant was entirely incidental to the attempted rape, the kidnapping conviction should properly have been dismissed as having merged with the underlying substantive offense (see, People v Cassidy, 40 N.Y.2d 763, 767; People v Miles, 23 N.Y.2d 527, cert denied 395 U.S. 948; People v Gonzalez, 171 A.D.2d 127; People v Scattareggia, 152 A.D.2d 679). The complainant was forced into a car at gunpoint and driven only a few blocks before she fought her way out of the car and the defendant sped off. Given these facts, independent criminal responsibility may not fairly be attributed to the defendant for the abduction of the complainant.
The defendant's contention that he was denied the effective assistance of trial counsel is without merit.
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Lawrence and Miller, JJ., concur.
I agree that the merger doctrine bars the defendant's conviction for kidnapping. In this case, unlike in People v Gonzalez ( 171 A.D.2d 127), there was no evidence from which the jury could conclude that the kidnapping was a crime separate from that of the attempted rape.