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DEFENDANT’S UNLAWFUL IMPRISONMENT CONVICTION MERGED WITH OFFENSES OF WHICH DEFENDANT WAS ACQUITTED; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, applying the merger doctrine and considering the unpreserved issue in the interest of justice, determined the unlawful imprisonment conviction must be vacated:

[Defendant was convicted] of coercion in the first degree, unlawful imprisonment in the first degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving … . * * *

… [U]pon exercising our interest of justice jurisdiction, we conclude that the merger doctrine precludes the defendant’s conviction of unlawful imprisonment in the first degree because the confinement of the complaining witness in the defendant’s car was only the incidental means to the accomplishment of the conduct underlying the counts of which the defendant was acquitted … . 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 … . People v Sims, 2021 NY Slip Op 06200, Second Dept 11-10-21

 

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