PEOPLE v. WEGMAN

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert L. WEGMAN, Defendant-Appellant.

Decided: December 31, 2003

PRESENT: GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Susan R. Rider of Counsel), for Defendant-Appellant. Robert L. Wegman, Defendant-Appellant Pro Se. John C. Tunney, District Attorney, Bath, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a bench trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] );  three counts of kidnapping in the second degree (§ 135.20);  three counts of burglary in the first degree (§ 140.30[1], [2], [4] );  assault in the second degree (§ 120.05[2] );  and two counts of criminal use of a firearm in the first degree (§ 265.09[1][a], [b] ).  Defendant failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive his right to a jury trial (see People v. Magnano, 158 A.D.2d 979, 551 N.Y.S.2d 131, affd. 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572).   In any event, that contention lacks merit.   Defendant waived his right to a jury trial in open court and in writing in accordance with the requirements of N.Y. Constitution, art. I, § 2 and CPL 320.10(2) (cf.   People v. Finkle, 262 A.D.2d 971, 972, 692 N.Y.S.2d 265, appeal dismissed 94 N.Y.2d 942, 709 N.Y.S.2d 498, 731 N.E.2d 154), and the record establishes that defendant's waiver was knowing, voluntary and intelligent.

 By failing to object to the testimony of one of the victims that she had hidden a gun owned by defendant because defendant “always said he was going to kill [her],” defendant failed to preserve for our review his contention that County Court erred in admitting that testimony (see CPL 470.05[2] ).   In any event, any error in the admission of that testimony is harmless, particularly because this was a bench trial, and we may therefore presume that the court considered only competent evidence in reaching its verdict (see People v. Jones, 289 A.D.2d 1010, 735 N.Y.S.2d 276, lv. denied 97 N.Y.2d 756, 742 N.Y.S.2d 616, 769 N.E.2d 362).

 The further contention of defendant that the court erred in refusing to suppress statements that he made to medical personnel in the presence of a police officer is moot, inasmuch as the prosecution did not introduce those statements at trial (see People v. Burnett, 306 A.D.2d 947, 948, 760 N.Y.S.2d 800).

 We reject the contention of defendant that the court abused its discretion in precluding defendant from recalling a prosecution witness to testify during the presentation of his defense (see People v. Taylor, 231 A.D.2d 945, 946, 647 N.Y.S.2d 902, lv. denied 89 N.Y.2d 930, 654 N.Y.S.2d 733, 677 N.E.2d 305).   The court did not limit defendant's cross-examination of the witness, and thus we conclude that defendant previously was afforded the opportunity to question that witness with respect to his observations of powder burns on one of the victims and the trajectories of the bullets that struck that victim, but failed to do so.

 Defendant's contention that the evidence is legally insufficient to support the conviction is without merit (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further disagree with both defendant and the People that count five, charging defendant with assault in the second degree, is an inclusory concurrent count of count four, charging defendant with attempted murder in the second degree (see CPL 300.30[4] ).   It is possible to commit the greater offense without also committing the lesser (see People v. Glover, 57 N.Y.2d 61, 63 64, 453 N.Y.S.2d 660, 439 N.E.2d 376), and thus the lesser offense is not included within the greater offense, as required by CPL 300.30(4).   We further conclude, however, that count 10, charging defendant with criminal use of a firearm by committing a class B felony while displaying what appears to be a revolver, must be dismissed as a non-inclusory concurrent count of count three (see 300.30[4];  People v. Brown, 67 N.Y.2d 555, 560-561, 505 N.Y.S.2d 574, 496 N.E.2d 663, cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161).   Count three charged defendant with burglary in the first degree by knowingly entering or remaining unlawfully in a dwelling with the intent to commit a crime therein and, while in the dwelling, displaying what appeared to be a revolver.  “When use of or display of a firearm is an element of a class B felony, the use or display of that same firearm cannot also be the predicate for criminal display of a firearm in the first degree” (Brown, 67 N.Y.2d at 560, 505 N.Y.S.2d 574, 496 N.E.2d 663).   We therefore modify the judgment by reversing that part convicting defendant of criminal use of a firearm in the first degree under count 10 of the indictment, vacating the sentence imposed thereon and dismissing that count.

 We reject defendant's further contention that the kidnapping count with respect to the attempted murder victim merges with the attempted murder count and therefore must be dismissed.  “The merger doctrine is intended to preclude 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 that independent criminal responsibility may not fairly be attributed to them” (People v. Cassidy, 40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 358 N.E.2d 870).   Here, the discrete acts of the kidnapping that continued for approximately two hours were not “so much the part of” the shooting of one of the three kidnapping victims shortly after defendant encountered all three victims that the attempted murder of that victim could not have been committed without the acts comprising the kidnapping (id.).   We reject defendant's further contention that the court erred in failing to consider certain lesser included offenses with respect to the counts charging kidnapping, assault in the second degree and criminal use of a firearm in the first degree.   Even assuming, arguendo, that the additional offenses were lesser included offenses of those charged, we conclude that defendant failed to “show that there is a reasonable view of the evidence * * * that would support a finding that he committed [any of] the lesser offense[s] but not the greater” (Glover, 57 N.Y.2d at 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

The record does not support the contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is neither unduly harsh nor severe.   We have reviewed defendant's remaining contentions, including those contained in the pro se supplemental brief, and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convictingdefendant of criminal use of a firearm in the first degree under count 10 of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment and as modified the judgment is affirmed.

MEMORANDUM: