PEOPLE v. SCOTT (2008)

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered December 6, 1999, convicting him of kidnapping in the second degree, unlawful imprisonment in the first degree, assault in the second degree, coercion in the first degree, menacing in the second degree, reckless endangerment in the first degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that he was deprived of his “fundamental” right to appellate review due to missing stenographic minutes of voir dire and the majority of the trial (People v. Montgomery, 24 N.Y.2d 130, 132, 299 N.Y.S.2d 156, 247 N.E.2d 130).   The defendant did not move for relief or even bring the fact of the missing minutes to the attention of the court or the stenographer until well after the expiration of the two-year statutory period the stenographer was required to preserve the minutes (see Judiciary Law § 297).   Under the circumstances, the defendant was not deprived of the right to appeal his conviction (see People v. Mirenda, 57 N.Y.2d 261, 267, 455 N.Y.S.2d 752, 442 N.E.2d 49;  People v. Bruno, 161 A.D.2d 778, 556 N.Y.S.2d 124;  People v. Glendy, 152 A.D.2d 597, 543 N.Y.S.2d 708;  People v. Alston, 134 A.D.2d 433, 435, 521 N.Y.S.2d 56).

Upon the exercise of our factual review power (see CPL 470.15[5] ), and to the extent the record permits sufficient review, we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's contention that the kidnapping conviction should be dismissed pursuant to the merger doctrine is without merit.   The defendant's restraint of the victim was a discrete act which requires punishment separate from the other crimes he committed (see People v. Gonzalez, 80 N.Y.2d 146, 589 N.Y.S.2d 833, 603 N.E.2d 938;  People v. Freeman, 267 A.D.2d 470, 471, 700 N.Y.S.2d 754;  People v. Chronis, 209 A.D.2d 712, 619 N.Y.S.2d 156).

The sentence imposed for the kidnapping conviction did not constitute cruel and unusual punishment in violation of constitutional limitations (see People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 913).   In addition, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).