PEOPLE v. CARTER

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

PEOPLE of the State of New York, Plaintiff–Respondent, v. David CARTER, Defendant–Appellant.

Decided: July 09, 1999

PRESENT:  DENMAN, P.J., LAWTON, HURLBUTT, SCUDDER and BALIO, JJ. Jeffrey G. Tompkins, Camden, for defendant-appellant. Steven G. Cox, Whitesboro, for plaintiff-respondent.

 Defendant failed to preserve for our review his contention that he was denied due process and a fair trial because evidence of a prior bad act was admitted without notice to him (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59;  CPL 470.05[2] ).   In any event, any error with respect to the admission of that evidence is harmless (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The evidence, viewed in the light most favorable to the People (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327), is legally sufficient to sustain the conviction of attempted kidnapping in the second degree and endangering the welfare of a child (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People presented evidence that defendant threatened to rape the child and pulled her by the wrist toward the open back door of his car, a place where she was not likely to be found (see, Penal Law §§ 110.00, 135.00[2][a];  § 135.20).

 We further reject defendant's contention that the endangering the welfare of a child charge should be merged with the attempted kidnapping charge.   Defendant's threat to the child before defendant grabbed her wrist satisfies the endangering charge (see, Penal Law § 260.10) and is separate from the attempt to pull the child into the car.   Therefore, defendant was not charged with “kidnapping where the conduct underlying the charge constituted an inseparable part of another crime” (People v. Smith, 47 N.Y.2d 83, 87, 416 N.Y.S.2d 784, 390 N.E.2d 291).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: