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The Unaccepted Offer of a Key to Defendant’s Apartment Made to the 10-Year-Old Victim Was Sufficient to Support the Attempted Kidnapping Charge/Twenty-Year-Old Child Molestation Conviction Properly Admitted to Show Defendant’s Intent Re: Kidnapping

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a cogent dissenting opinion by Judge Pigott, determined evidence of a prior sex crime against a child was admissible in an attempted kidnapping prosecution, and further determined the evidence of attempted kidnapping was sufficient. Twenty years earlier, the defendant had been convicted of molesting his step-daughter. Apparently there was a pattern of behavior with his step-daughter which included dressing up (costume) and inviting her to go places with him. That pattern was being repeated with the 10-year-old victim in the instant case. Defendant at one point showed up at the victim’s door dressed up in a costume. Defendant repeatedly asked the victim to go with him for ice cream or to a movie. Defendant offered the key to his apartment to the victim (which she refused). It was that offer (of a key) which formed the basis of the attempted kidnapping charge. The defendant’s conviction for molesting his step-daughter was allowed in evidence to show the defendant’s intent re: kidnapping. The People and the defendant presented expert testimony about defendant’s behavior pattern with his step-daughter and the current victim:

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but . . . an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the Defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[d]efendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the Defendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction. * * *

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances … . This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” … . People v Denson, 2015 NY Slip Op 07779, CtApp 10-27-15

 

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Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

Attempted Kidnapping Charge Supported by Sufficient Evidence/Defendant Tried to Convince the 10-Year-Old Victim to Take His Keys and Go to His Apartment

The First Department, over a dissent, determined there was sufficient evidence to support the attempted kidnapping charge, in spite of the absence of force. The defendant tried to convince the 10-year-old victim to take his keys and go to his apartment:

The crime of attempted kidnapping in the second degree was established by evidence that defendant intended to secrete or hold the 10-year-old victim in his apartment, a place where she was not likely to be found; that he made efforts to move or confine the victim without consent (see Penal Law §§ 135.00; 135.20); and that defendant came dangerously near to achieving his objective.The evidence left no doubt that the victim was unlikely to be found had she succumbed to defendant’s pressure to take his keys and go to the apartment. Similarly, the evidence left no doubt that defendant, a “highly-fixated” pedophile, attempted to restrain the victim, i.e. to move her to a different location without the permission of her mother.The dissent, in arguing that the crime was not established because defendant did not grab or unsuccessfully attempt to grab the victim, misconstrues the statutory requirement of restraint. While, with respect to an adult, it is necessary to establish that the movement or confinement was accomplished by “force, intimidation or deception,” the definition of restraint, with respect to a child less than 16 years of age, encompasses movement or confinement by “any means whatever,” including the acquiescence of the child (Penal Law § 135.00[1][b]). In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement. People v Denson, 2014 NY Slip Op 01141, 1st Dept 2-18-14

 

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Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error—Failure to Object at Trial Precludes Review

n a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine was created to remedy overcharging by the prosecution where kidnapping was really part of another, less serious, offense.  Here the defendant argued the kidnapping charge, which was based on his briefly restraining a woman while threatening to shoot her, merged with the related reckless endangerment charge.  Because the alleged error was not preserved in the trial court by an objection, the issue before the Court of Appeal was whether the error should be deemed a “mode of proceedings” error which would allow the Court to hear the appeal, despite the lack of preservation.  The Court wrote:

In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court … …. Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant’s failure to assert the claim in Supreme Court precludes review by our Court … . People v Hanley, 45, CtApp 3-28-13

 

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