People v. Hatch

25 A.D.2d 606 | N.Y. App. Div. | 1966

Judgment unanimously modified by reversing tjbe conviction for kidnapping and dismissing the kidnapping count of the indictment, and as so modified affirmed. Memorandum: Appellant stands convicted of the separate crimes of kidnapping, abduction, and illegal possession of a loaded weapon. The proof shows that by use of threats and a loaded pistol he forced a 16-year-old girl to enter his automobile and to be transported thereby to a secluded place, where he raped her. He then drove her to the vicinity of her home, released her, and sped away. The detention and asportation of his victim were incidents of the crime of abduction, of which he was convicted and sentenced to an indeterminate term of not less than 1 year and not more than 10 years, and were not the kind of restraints that would constitute the separate crime of kidnapping. (People v. Levy, 15 N Y 2d 159.) Appellant was lawfully arrested and his automobile and the evidence found in it were lawfully obtained in a search which was incidental to such arrest. The arrest having -been made in the nighttime on a public highway, it Was inadvisable to complete the search in that location, and it was thereafter completed at the police station. The search made there, after a brief and reasonable suspension, was merely a continuation of the search which was initiated at the time and place of the arrest. Hence we hold that the search was incidental to and contemporaneous with a lawful arrest; that the search was valid; and that the exhibits discovered by the search were properly admitted into evidence (People v. Montgomery, 21 A D 2d 904, affd. 15 N Y 2d 732). We find no merit in appellant’s remaining contentions that rulings of the trial court, portions of the court’s charge, and parts of the District Attorney’s summation require a new trial. Proof of appellant’s guilt was overwhelming, and we find no errors or defects affecting appellant’s substantial rights. (Code Crim. Pro., § 542.) (Appeal from judgment of Herkimer County Court, convicting defendant of kidnapping, abduction and illegal possession of a loaded weapon.)

Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.