PEOPLE v. MEJIA (2019)

DECISION & ORDER

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant and Domingo Mateo were indicted on charges of murder in the second degree, kidnapping in the first and second degrees, burglary in the first degree, and robbery in the first and second degrees in connection with a home invasion, which occurred on May 3, 2011, and resulted in the death of one of the occupants of the home.  Mateo was tried separately and convicted on all counts.  Thereafter, the defendant was tried and convicted on all counts.  On Mateo's appeal, this Court found that his conviction of kidnapping in the second degree was precluded by the merger doctrine and modified the judgment of conviction by vacating the conviction of kidnapping in the second degree and the sentence imposed thereon, and dismissing that count of the indictment as to that defendant (see People v. Mateo, 148 A.D.3d 727, 48 N.Y.S.3d 712).

The defendant now contends that his conviction of kidnapping in the second degree was precluded by the merger doctrine.  Although his contention is unpreserved for appellate review (see CPL 470.05[2] ), we nevertheless reach the issue in the exercise of our interest of justice jurisdiction, vacate the defendant's conviction of kidnapping in the second degree and the sentence imposed thereon, and dismiss that count of the indictment as to the defendant (see People v. Mateo, 148 A.D.3d at 728, 48 N.Y.S.3d 712;  People v. Garnes, 127 A.D.3d 1104, 1105, 6 N.Y.S.3d 666).

Contrary to the People's contention, the defendant preserved for appellate review his contention that the Supreme Court should have given an accomplice-in-fact charge with respect to witness Andres Moros (see CPL 470.05[2] ).  However, the contention is without merit.  The record contains no evidence from which it could reasonably be inferred that Moros participated in the planning or execution of the subject crimes (see People v. Jones, 73 N.Y.2d 902, 903, 539 N.Y.S.2d 286, 536 N.E.2d 615;  People v. Dotsenko, 150 A.D.3d 1146, 1147, 52 N.Y.S.3d 640;  People v. Lopez, 262 A.D.2d 659, 660, 694 N.Y.S.2d 674;  cf. People v. Vataj, 69 N.Y.2d 985, 987, 517 N.Y.S.2d 708, 510 N.E.2d 792).  At most, that witness was an accessory after the fact, “whose testimony needed no corroboration under CPL 60.22” (People v. Kingsberry, 11 A.D.3d 561, 562, 782 N.Y.S.2d 857;  see People v. Williams, 2 A.D.3d 760, 761, 769 N.Y.S.2d 797;  People v. Young, 235 A.D.2d 441, 444, 653 N.Y.S.2d 124).  Therefore, we agree with the Supreme Court's determination denying the defendant's request to instruct the jury that Moros could be considered an accomplice as a matter of fact (see People v. Jones, 73 N.Y.2d at 903, 539 N.Y.S.2d 286, 536 N.E.2d 615;  People v. Mohabir, 111 A.D.3d 851, 852, 975 N.Y.S.2d 165;  People v. Lopez, 262 A.D.2d at 660, 694 N.Y.S.2d 674;  People v. Kingsberry, 11 A.D.3d at 562, 782 N.Y.S.2d 857;  People v. Williams, 2 A.D.3d at 761, 769 N.Y.S.2d 797).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.

RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.