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New York Appellate Court Discusses Merger Doctrine in Sex Crime Case


The Appellate Division of the Supreme Court heard the case of the People, Respondent, v. Demetrio G, Appellant in a sex crime, kidnapping, and assault case. The event took place on November 28, 1987. The indictment also charged the defendant in another similar case that allegedly occurred on February 13, 1988 involving another woman. The later counts were dismissed.

The complainant’s testimony was the only evidence in the sex crime and other crimes allegedly committed on November 28, 1987. The incident was not reported to police until February 14, 1988 when the police came to interview her in connection with an attack on the other woman. She said that on November 28, 1987, she took her three oldest children to her neighbor’s apartment with the intent of going to the hospital to fill a prescription. At that time, the defendant was present in the neighbor’s apartment and volunteered to go downstairs to call a cab for her. The defendant got into the cab with the woman and allegedly told the driver to keep driving. He told the compliant that she was going to pay for what everyone had done to him. He then allegedly began beating her in the face with his fists and struck her head with a gun. He also stated that he would kill her.

He threatened to kill her son if she told anyone about what had happened. When it got dark, she was dropped off at a vacant parking lot in Brooklyn. At this point, she said that the taxi cab driver punched her in the mouth and that the defendant continued to punch her in the stomach. He then told her that he was going to rape her as she passed out. She did not wake up until the next morning and found herself with only her shirt and socks on and felt wet and sticky and her stomach and vagina felt sore. She was four months pregnant at the time, but she did not seek medical attention. Also, her former sister-in-law testified that the next day she had only a lump on her head and a bruised lip.

The counts of assault were dismissed due to lack of proof, and the defendant was acquitted of attempted rape in the first degree. He was convicted of kidnapping in the second degree because of the taxicab ride incident.

The Court agreed with the defendant that the trial evidence requires that the kidnapping conviction should be reversed since it is precluded by the merger doctrine. The purpose of this doctrine is to preclude the conviction for kidnapping based on acts that are involved in another substantive crime that could not have been committed without such acts. The rule is designed to recognize and prevent the true crime from being unnaturally elevated. In addition, the alleged assault and attempted sex crimes which were dismissed due to lack of proof were the horrendous nature of the attack on the complainant rather than the fact that she was detained.

Furthermore, the evidence only showed that the defendant intended to assault the complainant and commit sex crimes against her. In this case, the kidnapping charge cannot be isolated from the facts of the case. The true crime was the “violent rampage of an armed intruder.” The incidental confinement in the taxicab was the only way to carry out the assault and attempted sex crime.

Justice Rosenblatt, who concurred in part and dissented in part, disagreed with the majority as concerning the kidnapping-merger doctrine in this case. The sex crime and assault counts were dismissed or unproven, so under the majority view, the kidnapping not only merges, but it disappears. This document takes away any criminal responsibility from the defendant for the kidnapping that included terror and brutality towards the victim. Justice Rosenblatt believed that a new trial was warranted since the prosecutor presented evidence of another unrelated series of crimes involving two separate women and two separate dates. He believed that a mistrial should have been granted.

He also said that the abduction and terrorizing acts against the victim are being legally excused because the defendant may have had more in mind. Furthermore, he said that there is absolutely no evidence that the defendant intended to rape the woman or to commit a sex crime against her. By the time that he dropped her off in the parking lot, the abduction crime had been committed. Justice Rosenblatt cited other cases in which the merger was foreclosed.

It was then decided that the judgment was reversed, the indictment was dismissed, and the matter was resubmitted to the Supreme Court of Kings County.

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