GRAFFEO
Dechert LLP, New York City (Matthew L. Mazur and Robert J. Jossen of counsel), and Office of the Appellate Defender (Richard M. Greenberg of counsel) for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and Alan Gadlin of counsel), for respondent.
OPINION OF THE COURT
GRAFFEO, J.
The issue in this appeal is whether a defendant charged with kidnapping and another offense must preserve his argument that the kidnapping count merged with the other crime. We hold that preservation is required because the mode of proceedings exception is not applicable to such a claim.
In 2008, defendant Kirk Hanley was a 21–year–old college student attending City College in Manhattan. Defendant had a history of mental health problems and in his journal he stated that he admired notorious mass murderers such as Timothy McVeigh and the Columbine killers. His fantasies took a step toward reality in April 2008 when defendant launched a plot to commit a school shooting at City College so that he could “die in a blaze of glory.” In furtherance of his plan, defendant acquired a six-shot, .44 caliber revolver and two interchangeable six-shot cylinders that would allow him to fire 18 bullets without the need to reload. He explained in his journal that he wanted to kill at least five persons at the school in hopes of “trigger-[in] a race war.”
In furtherance of his plan, defendant loaded the gun and cylinders with bullets and headed to City College. There he met a female acquaintance near the school's financial aid office and revealed his intentions to her. Defendant showed her the gun and handed her two suicide notes that he had written. Upon hearing defendant's disturbing disclosure, she told defendant that she had to go into the financial aid office, where she immediately divulged defendant's plan to a school employee. The police were summoned and arrived quickly at the scene.
As the police officers approached defendant, he brandished the fully-loaded handgun, yanked a nearby woman out of her seat, pointed the pistol at her head and threatened to kill her if anyone moved. Defendant begged the police to shoot him and, when that didn't occur, he freed the hostage and pointed the gun at himself. Two police officers eventually convinced defendant to relinquish the firearm. When taken into custody, defendant reiterated his desire for the police to kill him and declared that the Columbine killers were his heroes.
A grand jury indicted defendant for second-degree kidnapping, two counts of second-degree weapon possession and first-degree reckless endangerment. After extensive psychiatric evaluations, defendant was found competent to proceed to trial. Defense counsel filed a notice of intent to present psychiatric evidence.
Instead of proceeding to trial, defendant abandoned his potential defenses and pleaded guilty to the indictment after the court promised to impose a determinate prison sentence between 12 and 15 years on the kidnapping charge, with five years of postrelease supervision, together with lesser concurrent sentences on the remaining offenses. During the plea colloquy, defendant admitted that he “held another person at gunpoint against [her] will.” The court sentenced defendant to an aggregate prison term of 14 years and five years of postrelease supervision.
The sentence consisted of 14 years (along with five years of postrelease supervision) for kidnapping; seven years (and five years of postrelease supervision) for each count of weapon possession; and 1 to 3 years for reckless endangerment.
On appeal, defendant sought reversal of the kidnapping conviction, arguing that his restraint of the female hostage was allegedly incidental to the conduct constituting reckless endangerment and, therefore, the kidnapping count “merged” with the reckless endangerment offense. The Appellate Division declined to address the merger theory since defendant's entry of a guilty plea forfeited this claim and the lack of a trial record rendered the issue unreviewable (85 A.D.3d 659, 925 N.Y.S.2d 824 [2011] ). A Judge of this Court granted defendant leave to appeal (18 N.Y.3d 994, 945 N.Y.S.2d 649, 968 N.E.2d 1005 [2012] ) and we now affirm.
As a general rule, our “Court does not consider claims of error not preserved by appropriate objection in the court of first instance” ( People v. Becoats, 17 N.Y.3d 643, 650, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011],cert. denied,566 U.S. ––––, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012] ). A narrow exception exists for “so-called ‘mode of proceedings' errors” ( People v. Kelly, 5 N.Y.3d 116, 119, 799 N.Y.S.2d 763, 832 N.E.2d 1179 [2005] ). The exception encompasses only “the most fundamental flaws” ( People v. Becoats, 17 N.Y.3d at 651, 934 N.Y.S.2d 737, 958 N.E.2d 865) that implicate “jurisdictional matters ... or rights of a constitutional dimension that go to the very heart of the process” ( People v. Parilla, 8 N.Y.3d 654, 659, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007] [internal quotation marks omitted]; see People v. Patterson, 39 N.Y.2d 288, 295–296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], aff'd,432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ). Aside from this “tightly circumscribed class” of claims ( People v. Kelly, 5 N.Y.3d at 120, 799 N.Y.S.2d 763, 832 N.E.2d 1179), we have consistently held that other types of legal issues—including most “errors of constitutional dimension” ( People v. Alvarez, 20 N.Y.3d 75, 81, 955 N.Y.S.2d 846, 979 N.E.2d 1173 [2012] )—must be preserved in the trial court.
Examples include: jurisdictional issues ( see e.g. People v. Correa, 15 N.Y.3d 213, 222, 907 N.Y.S.2d 106, 933 N.E.2d 705 [2010];People v. Pierce, 14 N.Y.3d 564, 570 n. 2, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010];People v. Kalin, 12 N.Y.3d 225, 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009];People v. Carvajal, 6 N.Y.3d 305, 312, 812 N.Y.S.2d 395, 845 N.E.2d 1225 [2005] ); double jeopardy ( see People v. Williams, 14 N.Y.3d 198, 220–221, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010],cert. denied562 U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010] ); constitutional speedy trial ( see People v. Blakley, 34 N.Y.2d 311, 315, 357 N.Y.S.2d 459, 313 N.E.2d 763 [1974] ); shifting the People's burden of proof to the defense ( see People v. Patterson, 39 N.Y.2d at 296, 383 N.Y.S.2d 573, 347 N.E.2d 898); delegation of a judicial function ( see People v. Ahmed, 66 N.Y.2d 307, 310–311, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985] ); prohibiting the defense from meaningful participation in the criminal proceeding ( see People v. O'Rama, 78 N.Y.2d 270, 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ); and the imposition of an illegal sentence ( see People v. Samms, 95 N.Y.2d 52, 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ).
Defendant concedes that he did not preserve his merger argument in Supreme Court but maintains that we should review its merits because the failure to apply the merger doctrine constitutes a mode of proceedings error premised on due process and double jeopardy concerns. The People dispute this contention, claiming that preservation should apply since the merger doctrine is a judicially-created maxim that is nonjurisdictional in nature and does not affect any fundamental constitutional protections or the integrity of the criminal proceeding.
From a historical perspective, the crime of kidnapping had a broad reach because it included “any restraint” ( People v. Levy, 15 N.Y.2d 159, 164, 256 N.Y.S.2d 793, 204 N.E.2d 842 [1965],cert. denied,381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 [1965] ). As a result, it could “literally overrun several other crimes”—most notably robbery or rape—“ since detention and sometimes confinement, against the will of the victim, frequently accompany” those offenses ( id.). When Levy was decided, the minimum sentence for kidnapping was 20 years to life, a punishment more severe than that permitted for rape or robbery ( see id.). Hence, prosecutors were able to charge a defendant with kidnapping “in order to expose him to the heavier penalty” even if the underlying criminal conduct constituted a robbery, rape or some other offense carrying a lesser term of incarceration ( People v. Cassidy, 40 N.Y.2d 763, 765, 390 N.Y.S.2d 45, 358 N.E.2d 870 [1976] ).
This Court created the merger doctrine to rectify this problem of overcharging ( see People v. Levy, 15 N.Y.2d at 164–165, 256 N.Y.S.2d 793, 204 N.E.2d 842). The aim of merger is to prohibit a “ ‘conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts' ” and independent criminal responsibility for kidnapping may not fairly be attributed to the accused ( People v. Bussey, 19 N.Y.3d 231, 237, 947 N.Y.S.2d 381, 970 N.E.2d 404 [2012], quoting People v. Cassidy, 40 N.Y.2d at 767, 390 N.Y.S.2d 45, 358 N.E.2d 870). Although each case should be considered independently, a kidnapping is generally deemed to merge with another offense only “where there is minimal asportation immediately preceding” the other crime or “where the restraint and underlying crime are essentially simultaneous” ( People v. Gonzalez, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 603 N.E.2d 938 [1992] ). But where “the abduction and underlying crime are discrete” or “the manner of detention is egregious, regardless of other considerations,” there is no merger and the kidnapping conviction should be sustained ( id.).
Applying this precedent, we believe that the merger doctrine does not fit within the purpose of the mode of proceedings exception to the preservation rule. Merger is a judicially-devised concept premised on fundamental fairness and an aversion to prosecutorial abuse. It is designed to prevent inordinately punitive sentences ( see People v. Levy, 15 N.Y.2d at 164, 256 N.Y.S.2d 793, 204 N.E.2d 842), but it is not jurisdictional in nature and does not implicate any fundamental constitutional concerns that strike at the core of the criminal adjudicatory process. As such, it is not akin to the types of claims that have been classified as mode of proceedings errors.
In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court ( see e.g. People v. Leiva, 59 A.D.3d 161, 872 N.Y.S.2d 448 [1st Dept.2009], lv. denied,12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009];People v. Rambali, 27 A.D.3d 582, 583, 813 N.Y.S.2d 103 [2d Dept.2006], lv. denied,7 N.Y.3d 761, 819 N.Y.S.2d 887, 853 N.E.2d 258 [2006];People v. Kruppenbacher, 81 A.D.3d 1169, 1170, 917 N.Y.S.2d 405 [3d Dept.2011], lv. denied,17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011];People v. Nelson, 57 A.D.3d 1441, 1442, 871 N.Y.S.2d 535 [4th Dept.2008] ). We employed a similar rationale in People v. Grega, 72 N.Y.2d 489, 497 n. 2, 534 N.Y.S.2d 647, 531 N.E.2d 279 (1988). Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant's failure to assert the claim in Supreme Court precludes review by our Court ( seeCPL 470.05 [2]; 470.35[1] ).
In light of our preservation determination, it is unnecessary for us to consider whether a guilty plea forfeits a merger claim ( see generally People v. Konieczny, 2 N.Y.3d 569, 573–574, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] [a guilty plea generally forfeits appellate review of nonjurisdictional defects in the underlying proceedings] ) or whether merger can be raised prior to a guilty verdict ( see People v. Morales, 148 A.D.2d 325, 326–327, 538 N.Y.S.2d 541 [1st Dept.1989] ).
Accordingly, the order of the Appellate Division should be affirmed. Chief Judge LIPPMAN and Judges READ, SMITH, PIGOTT and RIVERA concur.
Order affirmed.
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