Opinion
November 15, 1989
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On this appeal defendant claims that the charge of kidnapping merged with an assault charge (of which he was acquitted), precluding his conviction for kidnapping in the second degree; that evidence that he displayed what appeared to be a firearm was legally insufficient to support his conviction for criminal use of a firearm in the first degree (Penal Law § 265.09); and that the court erred in denying suppression of physical evidence seized during a search of the trunk of defendant's car. We conclude that these claims lack merit.
Where the asportation of a victim for a relatively short time is incidental to a robbery, rape or assault, the kidnapping charge merges into the other substantive crime, precluding a conviction for kidnapping (People v Lombardi, 20 N.Y.2d 266; People v Levy, 15 N.Y.2d 159, cert denied 381 U.S. 938). The merger doctrine is inapplicable where, as here, the kidnapping was undertaken with an intent to commit murder (see, People v Miles, 23 N.Y.2d 527, 539, cert denied 395 U.S. 948; People v Kalyon, 142 A.D.2d 650, 651, lv denied 72 N.Y.2d 1046). Moreover, asportation of the victim was not for the purpose of committing the assault; the assault was a separate crime that arose during the course of the kidnapping (see, People v Smith, 47 N.Y.2d 83; People v Kalyon, supra).
The victim testified that when he was taken to defendant's vehicle, defendant had a gun in his hand and pointed the gun at him. A witness testified that defendant had his hand at his waistband while taking the victim to the car and that when he was apprehended, defendant had two guns in his waistband. Under either version, evidence that defendant displayed a weapon was legally sufficient (see, People v Lockwood, 52 N.Y.2d 790; People v Bynum, 125 A.D.2d 207, affd 70 N.Y.2d 858; People v Knowles, 79 A.D.2d 116).
When the victim escaped from defendant's car, he ran to a police vehicle and told the officer that defendant and others were going to kill him and that they had guns and a machine gun. He then pointed to defendant's car. A frisk of defendant revealed two handguns, but further search of the passenger compartment did not uncover a machine gun or any other weapon. Police then opened the trunk of the car and, in examining the contents of a brown plastic bag, found a quantity of cocaine. Police also found a revolver and a shotgun in the trunk. We conclude that search of the trunk and containers therein was justified and that suppression was properly denied. Where, as here, there was probable cause to believe that more weapons were located in the car, search of the trunk was proper (see, United States v Ross, 456 U.S. 798, 825; People v Paone, 103 A.D.2d 1012), including closed containers therein (People v Ellis, 62 N.Y.2d 393; see also, People v Langen, 60 N.Y.2d 170, cert denied 465 U.S. 1028).