THE DOCTRINE OF MERGER REQUIRED REVERSAL OF THE KIDNAPPING CONVICTION AND THE INCLUSORY-CONCURRENT-COUNT DOCTRINE REQUIRED REVERSAL OF THE FORCIBLE TOUCHING CONVICTION (FOURTH DEPT).
The Fourth Department, reversing the kidnapping and forcible touching convictions determined the doctrine of merger precluded the kidnapping conviction and the forcible touching count was in inclusory concurrent count re: stalking:
Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted kidnapping in the second degree as a sexually motivated felony … , stalking in the first degree … , and forcible touching … .
Defendant approached the victim while she was walking alone on a street. After a brief verbal encounter, defendant began to follow the victim, grabbing her buttocks and then restraining her before ultimately releasing her and walking away. * * *
The merger doctrine is “a means of effectuating the Legislature’s intent [to effectuate a statutory scheme presenting a range of offenses and penalties measured by the gravity of a defendant’s conduct] by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping,” such as “conduct that, in fairness, should result in a single conviction” … . The “guiding principle” of the merger doctrine inquiry is whether the acts of restraint or abduction were ” ‘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’ ” … . Where the alleged “abduction and underlying crime are discrete, for example, there is no merger,” but “where there is minimal asportation immediately preceding [the underlying crime], the abduction should not be considered kidnapping” … . Here, defendant’s restraint of the victim was “simultaneous [with] and inseparable from” defendant’s stalking and forcible touching of the victim … , such that “independent criminal responsibility may not fairly be attributed” to the attempted kidnapping … .
Finally, we conclude that, as charged … , it was impossible for defendant to commit stalking in the first degree without, by the same conduct, committing forcible touching, thereby rendering forcible touching an inclusory concurrent count of stalking in the first degree … . People v Woods, 2024 NY Slip Op 03606, fourth Dept 7-3-24
Practice Point: Here is an illustration of the merger doctrine applied to reverse a kidnapping conviction and the inclusory-concurrent-count doctrine applied to reverse a forcible touching conviction.