People v. Rivera

251 A.D.2d 115, 672 N.Y.S.2d 740

Opinion

—Judgments, Supreme Court, New York County (Charles Tejada, J.), rendered October 6, 1995, convicting defendants, after a jury trial, of attempted murder in the second degree, kidnapping in the second degree and assault in the first degree, and sentencing defendant Hagans, as a second felony offender, to two concurrent terms of 10 to 20 years, concurrent with a term of 7V2 to 15 years, and sentencing defendant Rivera to three concurrent terms of 3 to 9 years, unanimously affirmed.

The verdicts were based on legally sufficient evidence and were not against the weight of the evidence. The issues raised on appeal concerning credibility and reliability of identification testimony were properly placed before the jury and we see no reason to disturb its determination.

Defendants’ contention that their convictions of kidnapping in the second degree had merged into the convictions of attempted murder in the second degree are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would find that “[s]ince the kidnapping could be viewed as a kidnapping with intent to accomplish murder, the merger doctrine is simply unavailable” (People v Kalyon, 142 AD2d 650, 651, lv denied 72 NY2d 1046; see also, People v Miles, 23 NY2d 527, 539, cert denied 395 US 948).

The challenged portions of the prosecutor’s summation, taken in context, were largely fair comment on the evidence, in response to defendants’ closing arguments (see, People v Overlee, 236 AD2d 133), and did not constitute a pattern of inflammatory remarks warranting reversal (see, People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).

Defendants’ motion to suppress identification testimony was properly denied (see, People v Estrada, 241 AD2d 378, lv denied 90 NY2d 1011). Concur — Williams, J. P., Tom, Mazzarelli and Andrias, JJ.