         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
725
KA 09-02332
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARREN MCEATHRON, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered October 20, 2008. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the second degree and
assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of kidnapping in the second degree (Penal Law §
135.20) and assault in the second degree (§ 120.05 [6]). We reject
defendant’s contention that County Court erred in denying his motion
for a trial order of dismissal with respect to the kidnapping charge
on the ground that it violates the merger doctrine. That doctrine
prohibits a conviction for kidnapping based upon acts that fall within
the definition of that crime but are merely incidental to another
crime (see generally People v Gonzalez, 80 NY2d 146, 151-152; People v
Cassidy, 40 NY2d 763, 767). Contrary to the People’s contention, we
conclude at the outset that defendant preserved his contention for our
review. Defense counsel moved for a trial order of dismissal at the
close of the People’s case and renewed that motion at the conclusion
of all the evidence (see CPL 290.10 [1]; People v Payne, 3 NY3d 266,
276-277, rearg denied 3 NY3d 767; People v Hines, 97 NY2d 56, 61,
rearg denied 97 NY2d 678).

     We agree with the People, however, that the merger doctrine does
not apply to the facts of this case. In making that determination,
our “guiding principle is whether [defendant’s] restraint [of the
victim] was ‘so much the part of another substantive crime that the
substantive crime could not have been committed without such acts and
that independent criminal responsibility may not fairly be attributed
to them’ ” (Gonzalez, 80 NY2d at 153, quoting Cassidy, 40 NY2d at
767). Here, “ ‘[t]he [abduction] was not a minimal intrusion
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                                                          KA 09-02332

necessary and integral to another crime, nor was it simultaneous and
inseparable from another crime. It was a crime in itself’ ” (People v
O’Connor, 21 AD3d 1364, 1365, lv denied 6 NY3d 757, quoting Gonzalez,
80 NY2d at 153). Thus, we conclude that the kidnapping was not a part
of the assault. Rather, the evidence demonstrates that defendant
restrained and began to transport the victim for undisclosed purposes
and that the assault was incidental to the kidnapping.

     Defendant further contends that he was denied a fair trial when
the People improperly bolstered the victim’s testimony. That
contention is not preserved for our review inasmuch as defendant’s
objection to the testimony in question was based only on the ground
that it constituted inadmissible hearsay. In any event, any
bolstering that may have taken place is harmless inasmuch as the
evidence of defendant’s guilt was overwhelming and there is no
significant probability that the jury would have acquitted defendant
but for the error (see People v Johnson, 57 NY2d 969, 970; see
generally People v Crimmins, 36 NY2d 230, 241-242). Defendant failed
to preserve for our review his contention with respect to the
remaining instances of alleged prosecutorial misconduct involving the
questioning of witnesses (see CPL 470.05 [2]), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Defendant also failed
to preserve for our review his contention that he was deprived of a
fair trial based on prosecutorial misconduct during summation (see
People v Fisher, 78 AD3d 1605, 1605-1606; People v Lyon, 77 AD3d 1338,
1339, lv denied 15 NY3d 954; People v Smith, 32 AD3d 1291, 1292, lv
denied 8 NY3d 849) and, in any event, that contention is without
merit. The majority of the comments in question were within “ ‘the
broad bounds of rhetorical comment permissible’ ” during summations
(People v Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854, quoting
People v Galloway, 54 NY2d 396, 399), and they were “ ‘either a fair
response to defense counsel’s summation or fair comment on the
evidence’ ” (People v Green, 60 AD3d 1320, 1322, lv denied 12 NY3d
915). Even assuming, arguendo, that some of the prosecutor’s comments
were beyond those bounds, we conclude that they were not so egregious
as to deprive defendant of a fair trial (see People v Figgins, 72 AD3d
1599, lv denied 15 NY3d 893; People v Sweney, 55 AD3d 1350, 1351, lv
denied 11 NY3d 901).

     We reject the contention of defendant that he was denied
effective assistance of counsel. To the extent that defendant
contends that defense counsel was ineffective for failing to move to
suppress certain evidence, “[d]efendant has failed to show that [such]
a . . . motion . . ., if made, would have been successful” (People v
Matthews, 27 AD3d 1115, 1116). In addition, defendant failed to
“demonstrate the absence of strategic or other legitimate
explanations” for defense counsel’s failure to make the pretrial
motions that he now claims should have been made (People v Garcia, 75
NY2d 973, 974; see People v Crouch, 70 AD3d 1369, 1370, lv denied 15
NY3d 773).

     The sentence is not unduly harsh or severe.   We have considered
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                                                         KA 09-02332

defendant’s remaining contentions and conclude that they are without
merit.




Entered:   July 1, 2011                         Patricia L. Morgan
                                                Clerk of the Court
