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THE DOCTRINE OF MERGER CAN BE APPLIED TO DISMISS A KIDNAPPING CHARGE EVEN IF THE LESSER OFFENSE IS NOT CHARGED (FOURTH DEPT).

The Fourth Department remitted the matter for consideration of the People’s remaining objection to applying the merger doctrine to the kidnapping charge. County Court had erroneously ruled the merger doctrine could not be applied to dismiss the kidnapping charge unless the lesser offense is also charged:

… [D]efendant contends that the court erred in denying that part of his omnibus motion seeking to dismiss the charge of kidnapping in the second degree pursuant to the merger doctrine. The kidnapping merger doctrine is a judicially-created doctrine intended to prevent overcharging and “to prohibit a conviction 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 independent criminal responsibility for kidnapping may not fairly be attributed to the accused” … . A kidnapping charge “is generally deemed to merge with another offense only where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous” … . Even if that is so, however, there is no merger where “the manner of detention is egregious” … . We agree with defendant that the court erred in concluding that the merger doctrine did not apply because defendant was charged only with kidnapping and, therefore, there was no other crime with which the count could merge.

… [D]efendant correctly contends that he had committed acts that would have supported a conviction for menacing and, therefore, the merger doctrine was applicable whether he was charged with the lesser offense or not … . * * *

Inasmuch as the court did not rule on the People’s alternative argument—i.e., that the merger doctrine did not apply because any alleged menacing of the victim was incidental to the kidnapping—we may not affirm the decision on that ground … . We therefore … reserve decision, and remit the matter to County Court for a ruling on the motion in accordance with this memorandum … . People v Almonte, 2024 NY Slip Op 02426, Fourth Dept 5-3-24

Practice Point: The doctrine of merger can be applied to dismiss a kidnapping charge even if the lesser offense is not charged.

 

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