178 A.D.2d 113 | N.Y. App. Div. | 1991
Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J.), rendered January 11, 1990, convicting defendant, after a jury trial, of murder in the first degree, intentional murder in the second degree, two counts of felony murder in the second degree, robbery in the first degree, kidnapping in the second degree, criminal possession of a weapon in the second and third degrees, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third and fourth degrees and sentencing him as follows: concurrent sentences of 25 years to life imprisonment for the four murder counts; 12 Vi to 25 years for robbery and 8 Vi to 25 years for kidnapping, each term to run consecutive to all other terms
The People’s evidence established that defendant murdered an undercover narcotics police officer in order to thwart an investigation into the narcotics operation he and his codefendants were conducting at an uptown Manhattan apartment. The People proved beyond a reasonable doubt that defendant knew the victim was a police officer and that defendant intended to kill him (Penal Law § 125.27 [1] [a] [i]; § 125.25 [1]). Two prosecution witnesses testified that defendant admitted that he knew the victim was a police officer before he shot him. Furthermore, the jury could infer from the circumstances of the shooting that defendant intended to shoot the victim because he was a police officer. A second undercover police officer at the scene of the crime testified that before his partner was shot, both officers had refused to sample defendant’s cocaine, defendant’s cohort found a gun on him, both officers attempted to escape, and defendant’s cohort yelled out, "policía, policía!”
Although the evidence against defendant was otherwise sufficient to sustain these convictions (People v Thompson, 72 NY2d 410, 413), his convictions for kidnapping and felony murder based upon the kidnapping cannot stand (People v Cassidy, 40 NY2d 763). Defendant’s act of holding a gun to Hoban’s head was integral to his criminal responsibility for both the robbery and kidnapping such that independent criminal responsibility may not be fairly attributed to both crimes (People v Cassidy, supra, at 767). Furthermore, since the manner of detention was not so egregious as to warrant application of the exception to the merger doctrine, we hold that the kidnapping charge merged with the robbery charge (People v Cassidy, supra, at 767), and consequently, defendant’s convictions for kidnapping and felony murder based upon the kidnapping must be reversed.
Defendant’s argument that the court abused its discretion by denying his request to replace a sworn juror who allegedly became grossly unqualified to serve is also unavailing. The juror, who informed the court that his brother and sister-in-law had been robbed by three young Hispanics during the course of the trial, unequivocally stated that he would not consciously allow the robbery to interfere with his promise to deliberate impartially, and gave an equivocal response regarding the effect of the robbery on his subconscious. Accordingly, the effect of the robbery on the juror’s ability to be impartial was only speculative and the court correctly concluded that the standard that it must be " 'obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (People v Buford, 69 NY2d 290, 298; CPL 270.20 [1] [b]) was not satisfied.
Furthermore, there is no merit to defendant’s contention that he was deprived of a fair trial as a result of three separate discovery violations. The court did not abuse its discretion in refusing to preclude a witness from testifying because of the late delivery of that witness’ cooperation agree
Lastly, we hold that the imposition of consecutive sentences for defendant’s commission of murder, robbery, the narcotics offenses, and weapon possession was proper since these crimes were committed by separate acts (Penal Law § 70.25; People v Underwood, 52 NY2d 882, 883). Furthermore, since defendant was motivated to kill a police officer merely to prevent detection of his own criminal activity and subsequently showed no remorse, the imposition of the maximum permissible terms for all of defendant’s crimes, with the exception of his narcotics offenses, did not constitute an abuse of discretion. Concur— Sullivan, J. P., Milonas, Wallach and Kassal, JJ.