People v. Palmer

50 A.D.2d 839, 377 N.Y.S.2d 107, 1975 N.Y. App. Div. LEXIS 12155

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Nassau County, rendered November 27, 1973, convicting him, inter alia, of felony murder, kidnapping in the second degree, robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reversing the convictions of assault in the second degree and kidnapping in the second degree (two counts) and the sentences imposed thereon, and dismissing the counts therefor in the indictment. As so modified, judgment affirmed. Defendant’s conviction for assault in the second degree is unsupported with respect to the proof of "physical injury” suffered by Mrs. Izzo. His conviction for kidnapping in the second degree (two counts) is also unsupportable. The evidence established that any restraint of the victims, inherent in compelling them to drive defendant from Nassau County to Manhattan, had no such relationship to abduction as to make out a. true kidnapping (People v Miles, 31 NY2d 918; People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159; People v Usher, 49 AD2d 499; People v Watts, 48 AD2d 863). Rabin, Acting P. J., Martuscello, Cohalan, Hargett and Munder, JJ., concur.