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Making Criminal Charges Disappear: The Merger Doctrine And How Some Crimes Merge Together To Prevent Overcharging The Defendant.


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People v Hanley

2013 NY Slip Op 02106 

The Court Of Appeals

Decided on March 28, 2013

Obscene Text Messages Are Forever, Especially When Your Ex-Girlfriend Is the Judge

Making Criminal Charges Disappear: The Merger Doctrine And How Some Crimes Merge Together To Prevent Overcharging The Defendant. 

Summary:  Defendant pleaded guilty to kidnapping and reckless endangerment and was sentenced to 14 years imprisonment.  He appealed his conviction arguing that the kidnapping was incidental to the reckless endangerment and that the kidnapping “merged” with the reckless endangerment offense.  The defendant argued that the merger doctrine required that his conviction for kidnapping be reversed.  The Court of Appeals held that the merger doctrine is designed to prevent inordinately punitive sentences but it is not jurisdictional.  Additionally, the defendant did not raise this issue at the trial level and it was not preserved for appeal.

Issue: Whether the merger doctrine was applicable to the charges of kidnapping and reckless endangerment where defendant held a gun to a woman’s head and threatened to kill her if anybody moved.

Issue: Whether the merger doctrine should be applied to avoid a mode of proceedings error because the issue was not raised at the trial level.

Holding: The Court of Appeals held that the merger doctrine does not fit within the purpose of the mode of proceedings exception. Defendant’s reckless endangerment count cannot merge with the kidnapping count. Each count is sufficiently independent of one another. As a general rule, a kidnapping is not combined with another offense when “the abduction and underlying crime are discrete” or “ the manner of detention is egregious, regardless of other circumstances. The Defendant’s kidnapping conviction as well as the other counts will be charged independently.

Facts: Defendant was a 21-year-old student at City College located in Manhattan and had a history of mental health problems. In April of 2008, Defendant launched a plot to commit a school shooting at City College. Defendant, with a loaded gun, met up with a female acquaintance and revealed his intentions to her. She quickly left him and told a Professor at the school’s financial aid office. The police arrived quickly at the scene. As the police approached, the Defendant, while brandishing a loaded handgun yanked a nearby woman out of her seat, pointed the pistol at her head, and threatened to kill her if anyone moved.

Two Police officers eventually convinced Defendant to relinquish the firearm. A grand jury indicted Defendant for second-degree kidnapping, two counts of second-degree weapon possession and first-degree reckless endangerment. The Defendant pleaded guilty to kidnapping and reckless endangerment.  The court sentenced Defendant to an aggregate prison term of 14 years and five years of post release supervision.

On appeal, Defendant sought reversal of the kidnapping conviction, arguing that his restraint of the female hostage was incidental to the conduct constituting reckless endangerment and, therefor the kidnapping count “merged” with the reckless endangerment offense. The Appellate Division declined to address the merger theory since Defendants entry of guilty plea forfeited this claim. A judge of this court granted Defendant leave to appeal and the Court of Appeals affirms.

Legal Analysis: The Supreme Court created the merger doctrine to rectify this problem of overcharging Defendants. People v Levy 15 NY2d 164. The 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” People v Bussey 19 NY3d 231.  A kidnapping is generally deemed to merge with another offense only “where the abduction and underlying crimes are discrete, or the manner of detention was egregious, regardless of other circumstances, there is no merger and the kidnapping conviction should be sustained.”

The defendant argued that although he did not argue the merger doctrine in the trial court to preserve the issue for appeal, that the court should consider the argument on appeal because of the mode of proceedings exception.  The Court of Appeals held that the merger doctrine does not fit within the purpose of the mode of proceedings exception and Defendant has offered no compelling justification and the Court of Appeals see no valid reason to do so. All four Appellate Divisions have concluded that in order for the merger doctrine to apply, the merger claim must be raised in the trial court.