People v. Masterson

Order unanimously reversed on the law, conviction reinstated and matter remitted to Monroe County Court for further proceedings, in accordance with the following memorandum: The trial court erred in dismissing defendant’s kidnapping conviction on the ground that it merged with his sexual abuse conviction. The proof in this case showed that defendant abducted his victim, detained him for nearly six hours, twice told him to change his clothes, cut his hair from shoulder length to crew cut length and told him that they would sleep by day and travel by night, thereby establishing that the abduction of the victim was discrete from and independent of any sexual abuse .occurring during the time in which the victim was detained. In these circumstances merger does not apply (see, People v Smith, 47 NY2d 83; People v Moore, 154 AD2d 929, lv denied 75 NY2d 773; People v Stein, 119 AD2d 605, lv denied 67 NY2d 1057; People v Brown, 112 AD2d 1087). Moreover, the testimony of defendant’s psychiatrist that defendant was motivated by a desire to have sexual contact with adolescent boys was not sufficient to require that the convictions be merged (see, People v Smith, supra, at 87; People v Miles, 23 NY2d 527, 540, cert denied 395 US 948). Accordingly, defendant’s kidnapping conviction is reinstated, and the matter is remitted to Monroe County Court for sentencing. (Appeal from Order of Monroe County Court, Connell, J.—Dismiss Conviction.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.