Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Charles Tejada, J.).
The verdicts were based on legally sufficient evidence and were not against the weight of the evidence. The issues raised on appeal concerning credibility and reliability of identification testimony were properly placed before the jury and we see no reason to disturb its determination.
Defendants' contention that their convictions of kidnapping in the second degree had merged into the convictions of attempted murder in the second degree are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would find that "[s]ince the kidnapping could be viewed as a kidnapping with intent to accomplish murder, the merger doctrine is simply unavailable" (People v. Kalyon, 142 A.D.2d 650, 651, lv denied 72 N.Y.2d 1046; see also, People v. Miles, 23 N.Y.2d 527, 539, cert denied 395 U.S. 948).
The challenged portions of the prosecutor's summation, taken in context, were largely fair comment on the evidence, in response to defendants' closing arguments (see, People v. Overlee, 236 A.D.2d 133), and did not constitute a pattern of inflammatory remarks warranting reversal (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
Defendant's motion to suppress identification testimony was properly denied (see, People v. Estrada, 241 A.D.2d 378, lv denied 90 N.Y.2d 1011).
Concur — Williams, J. P., Tom, Mazzarelli and Andrias, JJ.