You are here: / / UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL...

UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS.

The Third Department, in the interest of justice, determined that the attempted kidnapping conviction merged with the sexual abuse and assault convictions:

The merger doctrine bars convictions for kidnapping “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” … . While application of the doctrine is dependent on the particular facts and circumstances of each case, “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'” … .

Here, the victim’s testimony, as well as the surveillance footage, established that defendant immediately began punching the victim upon opening the door to her vehicle and that, after dragging her roughly 58 feet, he continued to punch the victim while forcibly subjecting her to sexual contact. This brutal encounter lasted between three and four minutes. Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree … , we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment … . People v Bautista, 2017 NY Slip Op 01410, 3rd Dept 2-23-17

CRIMINAL LAW (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/KIDNAPPING (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/MERGER (CRIMINAL LAW, UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)

You might also like
IN A FORECLOSURE ACTION, THE REFEREE’S FAILURE TO HOLD A HEARING DOES NOT REQUIRE REVERSAL OF THE JUDGMENT OF FORECLOSURE IF THE DEFENDANT HAD THE OPPORTUNITY TO CHALLENGE THE REFEREE’S REPORT BY SUBMITTING EVIDENCE DIRECTLY TO SUPREME COURT (THIRD DEPT).
MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT).
BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).
A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),
Presumption, Pursuant to Banking Law 675, that a Joint Bank Account Created a Joint Tenancy with Right of Survivorship Is Not Triggered Unless the Signature Card for the Account Indicates a Right of Survivorship Was Intended
ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).
PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).
PLAINTIFFS’ ACTION ALLEGING THE LOBBYING ACT IS UNCONSTITUTIONAL AS APPLIED TO THEM SHOULD HAVE BEEN ALLOWED TO PROCEED; PLAINTIFFS ENGAGED IN “GRASSROOTS LOBBYING” IN SUPPORT OF PASSAGE OF THE CHILD VICTIMS ACT (CVA) (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR... PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR...