People v. Cannon

Appellate Division of the Supreme Court of New York

People v. Cannon

236 A.D.2d 294, 654 N.Y.S.2d 129, 1997 N.Y. App. Div. LEXIS 1417

Appellate Division of the Supreme Court of the State of New York·Decided February 20, 1997·Published·Cited by 4 cases

Opinion

—Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered February 15, 1994, convicting defendant, after a jury trial, of kidnapping in the second degree and robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

The merger doctrine does not require dismissal of the kidnapping count because the gunpoint kidnapping, that including handcuffing and abandonment of the victim in an isolated area, "was not a minimal intrusion necessary and integral to another crime” (People v Gonzalez, 80 NY2d 146, 153).

The People laid sufficient foundation, through a police witness, for admission of a photograph of defendant standing next to a measuring device. Any error in either the sufficiency of the foundation, or the timing of disclosure of the photograph, was harmless in light of the witness’s inability to offer a conclusion as to defendant’s height based on the photograph, and in light of counsel’s exhaustive exploration of inconsistencies in evidence regarding the actual height of defendant, who had absented himself from trial (see, People v Rosario, 124 AD2d 683, lv denied 69 NY2d 833).

We perceive no abuse of sentencing discretion. Concur— Sullivan, J. P., Ellerin, Tom and Adrias, JJ.

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—Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered February 15, 1994, convicting defendant, after a jury trial, of kidnapping in the second degree and robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

The merger doctrine does not require dismissal of the kidnapping count because the gunpoint kidnapping, that including handcuffing and abandonment of the victim in an isolated area, "was not a minimal intrusion necessary and integral to another crime” (People v Gonzalez, 80 NY2d 146, 153).

The People laid sufficient foundation, through a police witness, for admission of a photograph of defendant standing next to a measuring device. Any error in either the sufficiency of the foundation, or the timing of disclosure of the photograph, was harmless in light of the witness’s inability to offer a conclusion as to defendant’s height based on the photograph, and in light of counsel’s exhaustive exploration of inconsistencies in evidence regarding the actual height of defendant, who had absented himself from trial (see, People v Rosario, 124 AD2d 683, lv denied 69 NY2d 833).

We perceive no abuse of sentencing discretion. Concur— Sullivan, J. P., Ellerin, Tom and Adrias, JJ.

People v. Cannon, 236 A.D.2d 294, 654 N.Y.S.2d 129, 1997 N.Y. App. Div. LEXIS 1417 (N.Y. Ct. App. 1997).

Pincite

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Opinion

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