PEOPLE v. JACOBS (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of assault in the second degree (Penal Law § 120.05[2] ), two counts of criminal possession of a weapon in the third degree (§ 265.02[1] ), and one count each of kidnapping in the second degree (§ 135.20) and attempted robbery in the first degree (§§ 110.00, 160.15[3] ).   We agree with defendant that the kidnapping conviction is precluded by the merger doctrine (see generally People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870).   Although defendant failed to preserve his contention for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Here, the restraint and asportation of the victim were “so much the part of” the attempted robbery and assault of the victim that those crimes could not have been committed without the acts comprising the kidnapping (Cassidy, 40 N.Y.2d at 767, 390 N.Y.S.2d 45, 358 N.E.2d 870;  see People v. Cain, 76 N.Y.2d 119, 125, 556 N.Y.S.2d 848, 556 N.E.2d 141;  cf. People v. Rios, 60 N.Y.2d 764, 766, 469 N.Y.S.2d 670, 457 N.E.2d 776;  People v. Gray, 288 A.D.2d 897, 898, 732 N.Y.S.2d 384, lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159).   We therefore modify the judgment by reversing that part convicting defendant of kidnapping in the second degree and dismissing count 12 of the indictment.

 We also agree with defendant that the judgment must be further modified by reversing that part convicting him of attempted robbery in the first degree.   Although defendant was indicted on a single count of attempted robbery, the People presented evidence establishing a completed robbery, which could result in a conviction of attempted robbery (see Penal Law § 110.00;  People v. Alamo, 34 N.Y.2d 453, 456, 358 N.Y.S.2d 375, 315 N.E.2d 446), as well as evidence establishing an attempted robbery.  “Reversal is required because the jury may have convicted defendant of an unindicted [attempted robbery], resulting in the usurpation by the prosecutor of the exclusive power of the Grand Jury to determine the charges” (People v. McNab, 167 A.D.2d 858, 858, 562 N.Y.S.2d 590;  see People v. Comfort, 31 A.D.3d 1110, 1111, 817 N.Y.S.2d 811, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71), as well as the “danger that ․ different jurors convicted defendant based on different acts” (People v. Whitfield, 255 A.D.2d 924, 924, 682 N.Y.S.2d 741, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112).   We therefore further modify the judgment by reversing that part convicting defendant of attempted robbery in the first degree and dismissing count 13 of the indictment without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury (see e.g. People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661;  People v. Bracewell, 34 A.D.3d 1197, 1199, 827 N.Y.S.2d 793).

 Contrary to the contention of defendant, Supreme Court properly refused to suppress the written statements that he made to a police detective after he waived his Miranda rights.   There was “such a definite, pronounced break [between the pre-Miranda interrogation and the post-Miranda ] interrogation that defendant may be said to have returned, in effect, to the status of one who [was] not under the influence of questioning” (People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243;  see People v. Smith, 275 A.D.2d 951, 713 N.Y.S.2d 426, lv. denied 96 N.Y.2d 739, 722 N.Y.S.2d 806, 745 N.E.2d 1029).   Contrary to the further contention of defendant, neither the indictment nor the court's charge to the jury precluded a conviction of assault under count five of the indictment, which was based on a theory of transferred intent (see Penal Law § 120.05 [2] ).   The record establishes that the court's final charge on that count, to which there was no objection by defendant, adequately set forth the elements of that crime, and there is legally sufficient evidence of the elements of that crime “as those elements were charged to the jury without exception” (People v. Dekle, 56 N.Y.2d 835, 837, 452 N.Y.S.2d 568, 438 N.E.2d 101 [emphasis omitted];  see People v. Sala, 95 N.Y.2d 254, 260-261, 716 N.Y.S.2d 361, 739 N.E.2d 727).

 We reject the further contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to challenge the legality of the warrantless entry into defendant's home and the warrantless arrest of defendant therein pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.   Defendant failed to meet his burden of “demonstrat[ing] the absence of strategic or other legitimate explanations” for defense counsel's failure to do so (People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902;  see People v. Murphy, 43 A.D.3d 1334, 842 N.Y.S.2d 623, lv. denied 9 N.Y.3d 1037, 852 N.Y.S.2d 22, 23, 881 N.E.2d 1209, 1210;  see also People v. Marcial, 41 A.D.3d 1308, 1308-1309, 837 N.Y.S.2d 815, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757).   “We further conclude on the record before us that the cumulative effect of defense counsel's [other] alleged deficiencies, viewed in totality and as of the time of the representation, did not deprive defendant of effective assistance of counsel” (Marcial, 41 A.D.3d at 1309, 836 N.Y.S.2d 479;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Contrary to defendant's further contentions, the verdict is not against the weight of the evidence with respect to assault in the second degree under counts four and five of the indictment (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.   Defendant failed to preserve for our review his contentions concerning the alleged legal insufficiency of the evidence with respect to those counts and count six, for criminal possession of weapon in the third degree (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Finally, defendant failed to preserve his remaining contentions for our review (see CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing those parts convicting defendant of kidnapping in the second degree and attempted robbery in the first degree, dismissing count 12 of the indictment, and dismissing count 13 of the indictment without prejudice to the People to re-present any appropriate charges under count 13 of the indictment to another grand jury and as modified the judgment is affirmed.

MEMORANDUM: