Opinion
February 28, 1995
Appeal from the Supreme Court, Bronx County (Jerome Reinstein, J.).
The kidnapping charges did not merge into the attempted escape charge since the continued restraint of the officers after other correction officers discovered that the inmates had taken over the facility constituted a discrete crime (see, People v. Steel, 207 A.D.2d 744). In any event, the merger doctrine is not applicable to this case since the detention here was unusually brutal. All of the officers were bound, beaten and gagged; two were threatened with a razor or a knife; one was used as a "shield;" and defendant threatened to kill the "hostages" since he "had nothing to lose" (People v. Taylor, 184 A.D.2d 218, lv denied 80 N.Y.2d 897).
The court properly exercised its discretion when it denied defendant's request to have several inmates testify about purported beatings which correction officials had inflicted on defendant, since the witnesses were not present on the day of the incident and could not testify that they had observed "conditions posing an imminent danger of personal injury to [defendant]," to justify his escape from prison (People v. Gittens, 183 A.D.2d 782, 782-783, lv denied 80 N.Y.2d 895).
Defendant has failed to provide an adequate record to review his claim that he was deprived of his due process rights by the 10 year delay between the filing of his notice of appeal and the perfection of his appeal. Nor has he demonstrated that he was prejudiced by the delay (see, People v. Cousart, 58 N.Y.2d 62, 68-69).
We perceive no abuse of discretion where the trial court denied defendant's motion for a mistrial after defendant's only remaining co-defendant pleaded guilty during jury selection, outside of the presence of the jury, and the court admonished the jury that they must not draw any inference from his absence (People v. Mirenda, 23 N.Y.2d 439, 450-451).
We have considered defendant's remaining contentions, and find them to be without merit.
Concur — Murphy, P.J., Ellerin, Kupferman, Williams and Tom, JJ.