THE PEOPLE OF THE STATE OF NEW YORK v. SHAWN HART (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 8, 2026

Appeal from a judgment of the County Court of Clinton County (William Favreau, J.), rendered April 16, 2025, upon a verdict convicting defendant of the crimes of assault in the second degree, strangulation in the second degree, criminal possession of a weapon in the third degree and kidnapping in the second degree.

Late on the night of March 29, 2024, the victim was lured by the codefendant, with assistance from defendant, to the codefendant's residence in the Town of Black Brook, Clinton County.  The victim believed that the purpose of his visit was to take drugs and engage in sexual activity with the codefendant.  However, when the victim walked in the door of the residence, an unknown individual identified as “M” confronted the victim with a rifle.  Defendant then appeared and punched the victim in the head, and M and defendant proceeded to rip the victim's clothes off and physically assault him, using fists, a baseball bat, a knife and the victim's belt.  During the 15–to–20–minute attack, defendant repeatedly told the victim to stay away from defendant's ex-girlfriend.  Eventually, the victim who by this point was naked and had a broken nose and broken ribs was able to escape the residence.  While M and defendant continued to threaten him in the driveway, the victim got into his vehicle and drove away.  The next morning, the victim went to the hospital and received medical treatment.

Defendant and the codefendant were later arrested and jointly indicted in connection with the incident.  For his part, defendant was charged with assault in the second degree, strangulation in the second degree, criminal possession of a weapon in the third degree and kidnapping in the second degree.  Following a jury trial, defendant was found guilty as charged and sentenced to a prison term of 20 years, to be followed by five years of postrelease supervision, on the kidnapping conviction;  a concurrent prison term of seven years, to be followed by three years of postrelease supervision, on the assault conviction;  and lesser concurrent prison terms on the remaining convictions.  Defendant appeals.

We turn first to defendant's argument that his kidnapping conviction merged with his conviction for assault, requiring dismissal pursuant to the merger doctrine.  Although this claim is unpreserved, we nevertheless deem it appropriate to exercise our interest of justice jurisdiction to take corrective action (see People v. Bautista, 147 AD3d 1214, 1218 [3d Dept 2017] ).  Created to rectify the problem of overcharging, “[t]he aim of merger is to prohibit a conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and independent criminal responsibility for kidnapping may not fairly be attributed to the accused” (People v. Hanley, 20 NY3d 601, 605–606 [2013] [internal quotation marks and citations omitted];  see People v. Bonilla, 229 AD3d 850, 853–854 [3d Dept 2024], lv denied 42 NY3d 1018 [2024] ).  “While application of the doctrine is dependent on the particular facts and circumstances of each case, a kidnapping is generally deemed to merge with another offense where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous” (People v. Bautista, 147 AD3d at 1218 [internal quotation marks, ellipsis and citations omitted] ).  Notwithstanding the foregoing, “the merger doctrine does not apply ‘where the manner of detention is egregious' “ (People v. Leiva, 59 AD3d 161, 161 [1st Dept 2009], lv denied 12 NY3d 818 [2009], quoting People v. Gonzalez, 80 N.Y.2d 146, 153 [1992] ).

Here, the proof at trial demonstrated that the victim was lured to the residence on the promise of sex and drugs and, immediately upon entering, he was assaulted while also being prevented from leaving for 15 to 20 minutes.  Thus, the kidnapping and the assault occurred simultaneously, as part of a single, uninterrupted and relatively brief episode (compare People v. Thorpe, 141 AD3d 927, 932 [3d Dept 2016], lv denied 28 NY3d 1031 [2016];  People v. Lipford, 129 AD3d 1528, 1530 [4th Dept 2015], lv denied 26 NY3d 1041 [2015];  People v. Leiva, 59 AD3d at 161;  see also People v. Poladian, 189 A.D.2d 911, 911–912 [3d Dept 1993], lv denied 81 N.Y.2d 891 [1993] ).  Further, we reject the People's contention that, under the circumstances of this case, the merger doctrine should not apply, since the manner of detention was not so egregious that the kidnapping conviction should be sustained regardless of the aforementioned considerations (see People v. Gonzalez, 80 N.Y.2d at 153;  People v. Leiva, 59 AD3d at 161).  Accordingly, the merger doctrine applies and the kidnapping charge must be dismissed (see People v. Jacobs, 52 AD3d 1182, 1183 [4th Dept 2008], lv denied 11 NY3d 926 [2009] ).

Next, defendant claims that his trial counsel was ineffective.  We disagree.  Effective assistance of counsel is a “flexible standard” met when “ ‘the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’ “ (People v. Benevento, 91 N.Y.2d 708, 712 [1998], quoting People v. Baldi, 54 N.Y.2d 137, 147 [1981];  accord People v. Malloy, 228 AD3d 1068, 1071 [3d Dept 2024], lv denied 42 NY3d 971 [2024] ).  Regarding defendant's assertion that counsel failed to object during the People's presentation of Molineux evidence in order to “attempt to have limits placed” upon it, this proof had already been ruled admissible prior to trial, and defendant makes no claim, nor do we find, that the evidence exceeded the bounds of the pretrial ruling.  Consequently, such an objection would not likely have succeeded (see People v. Lewis, 224 AD3d 1143, 1155 [3d Dept 2024], lv denied 42 NY3d 939 [2024] ).  Defendant also contends that counsel should have requested that assault in the third degree be submitted to the jury as a lesser included offense of assault in the second degree and criminal obstruction of breathing or blood circulation be submitted as a lesser included offense of strangulation in the second degree.¹  However, given that there was no reasonable view of the evidence that defendant committed the lesser offenses but not the greater, counsel was not ineffective for failing to request them (see People v. Dozier, 94 AD3d 1226, 1229 [3d Dept 2012], lv denied 19 NY3d 996 [2012];  People v. Fletcher, 309 A.D.2d 1085, 1086 [3d Dept 2003], lv denied 1 NY3d 571 [2003] ).  We have considered defendant's remaining claims of ineffectiveness and find them to be lacking in merit.  Upon consideration of the record as a whole, we are satisfied that defendant received meaningful representation (see People v. Clark, 244 AD3d 1613, 1617 [3d Dept 2025], lv. denied 45 NY3d 996 [2026] ).

Finally, we reject defendant's argument concerning the perceived severity of his sentence, which challenge we review only to the extent that it pertains to the charges not dismissed herein (see People v. Boula, 106 AD3d 1371, 1374 [3d Dept 2013], lv denied 21 NY3d 1040 [2013] ).  Given the seriousness of defendant's conduct along with his criminal history, the aggregate sentence of seven years in prison plus three years of postrelease supervision is not unduly harsh or severe (see People v. Scott, 250 AD3d 1345, 1354 [3d Dept 2026], lv denied _ NY3d _ [Sept. 14, 2026] ).

Pritzker, J.P., Powers, Corcoran and Ryba, JJ., concur.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing defendant's conviction of kidnapping in the second degree under count four of the indictment;  said count dismissed and the sentence imposed thereon vacated;  and, as so modified, affirmed.

FOOTNOTES

1.   Defendant's additional argument that counsel should have sought an instruction on unlawful imprisonment in the second degree as a lesser included offense of kidnapping in the second degree has been rendered moot by our dismissal of the kidnapping charge (see People v. Knapp, 220 AD3d 1018, 1021 [3d Dept 2023] ).

Ceresia, J.