People v. Cresci

112 A.D.2d 246, 491 N.Y.S.2d 695, 1985 N.Y. App. Div. LEXIS 55992

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County (Jaspan, J.), rendered December 6, 1982, convicting him of attempted kidnapping in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant committed the crime of attempted kidnapping in the second degree. Although much of the evidence was circumstantial, the facts proved excluded to a moral certainty every reasonable hypothesis except that of defendant’s guilt (People v Benzinger, 36 NY2d 29, 32). Furthermore, defendant’s reliance on People v Usher (49 AD2d 499, affd 40 NY2d 763) and the merger doctrine is misplaced. Here, as in People v Dodt (92 AD2d 1063, 1064, revd on other grounds 61 NY2d 408), "there was a total absence of any evidence of the commission or attempted commission of any other crime to which the abduction of the victim was incidental or inseparable from, and therefore there was nothing into which the kidnapping could merge”. We have considered defendant’s remaining contentions and find them to be either unpreserved or without merit. Mollen, P. J., Bracken, Niehoff and Rubin, JJ., concur.