People v. Pellot , 483 N.Y.S.2d 409 ( 1984 )

Brown, J.

(concurring in the result). I am not prepared to join my colleagues in the majority in sounding the death knell for the merger doctrine in all first degree kidnapping prosecutions in which the victim dies (Penal Law, § 135.25, subd 3). The merger rule (People v Levy, 15 NY2d 159; People v Lombardi, 20 NY2d 266) was created “to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal” (People v Miles, 23 NY2d 527, 540, cert den 395 US 948). Its rationale is made no less compelling by the fact that the death of the victim ultimately ensues. In the case in which the detention is an inseparable part of the homicide, the merger doctrine should still be available to prevent the “unnatural elevation of the ‘true’ crime to be charged” (People v Cassidy, 40 NY2d 763, 767).^*

I would not, however, apply the merger doctrine here since this is not a case in which the kidnapping prosecution is 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, supra, p 767; People v Smith, 47 NY2d 83). Rather, the facts herein fit within the exception to the merger doctrine in which a separate prosecution is authorized by reason of the fact that the victim’s abduction was independent of the subsequent homicide (see People v Miles, supra). It appears that defendant’s initial motive was to restrain his victim and move him from one place to another under threat of deadly physical force in an effort to locate another individual; the abduction was, in spite of its brevity, an end in and of itself and was not incidental to the killing of the victim.

Accordingly, I conclude that under the circumstances at bar the defendant was properly convicted of kidnapping in the first degree. I agree that defendant’s other contentions are without merit.

Boyers and Eiber, JJ., concur with Lazer, J. P.; Brown, J., concurs in the result, with an opinion.

Judgment of the Supreme Court, Kings County, rendered January 5, 1982, affirmed.

* While kidnapping in the first degree is classified as a class A-I felony (Penal Law, § 135.25) all homicide offenses, with the exception of murder in the first and second degrees (Penal Law, §§ 125.27, 125.25), are classified as lesser offenses (e.g., Penal Law, §§ 125.20, 125.15, 125.10).