rule does not apply where accompanying offense is murder because does not present danger of overcharging
How later courts described this case
- rule does not apply where accompanying offense is murder because does not present danger of overcharging
Written by the judges who cited it.
The opinion
J. H. Gtllis, P. J.
(dissenting). Unlike my Colleagues, I am satisfied that there was sufficient evidence from which the jury could lawfully find defendant Adams guilty of kidnaping. Accordingly, I would affirm defendant’s conviction.
In my view, the majority misapply the teachings of. such cases as People v. Levy (1965), 15 NY2d 159 ( 256 NYS2d 793 ), People v. Lombardi (1967), 20 NY2d 266 ( 282 NYS2d 519 ), and People v. Daniels (1969), 71 Cal 2d 1119 (80 Cal Rptr 897). And, as a result, the majority reach what I consider to be an absurd result. This case is not one in which the restraint and forcible movement of Inspector Dembosky can be characterized solely as “incident to *576 other crimes and * * # integral parts of other crimes”. People v. Levy, 15 NY2d at 165 ( 256 NYS2d at 796 ). This case does not involve movement of the victim incident to robbery (People v. Levy, supra; People v. Daniels, supra); nor does it involve asportation incident to rape (People v. Lombardi, supra; People v. Daniels, supra).
In People v. Miles (1969), 23 NY2d 527, 539, 540 ( 297 NYS2d 913, 922 ), the New York Court of Appeals explained the Levy-Lombardi rationale as follows :
“In the Levy and Lombardi cases, and especially in the Levy case, the restraint and asportation were parts of the crimes ultimately committed. The robbery and the rapes could not be committed in the forms planned without the limited asportations there involved. Indeed, in any robbery, there is a restraint of ‘false imprisonment’ and in every rape there is a similar restraint and often removal in some limited sense. It is this kind of factual merger with the ultimate crime of the preliminary, preparatory, or concurrent action that the rule is designed to recognize, and thus prevent unnatural elevation of the ‘true’ crime to be charged.
# # #
“Moreover, the rule has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitute and should constitute a separately cognisable offense.
* # #
“In short, the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge ‘true’ kidnappings into other crimes merely because the kidnap *577 pings were used to accomplish ultimate crimes of lesser or equal or greater gravity.” (Emphasis supplied.)
Nothing in this record suggests to me an excess of prosecutorial zeal. Accordingly, the Levy-Lombardi rule is inapposite. In my view, Adams’ conduct could lawfully be considered “true” kidnaping.
In People v. Congdon (1889), 77 Mich 351, 354 , the Michigan Supreme Court noted that the gist of the offense under the kidnaping statute is the involuntariness of the seizure. Similarly, the United States Supreme Court has stated that “the involuntariness of seizure and detention * * * is the very essence of the crime of kidnaping”. Chatwin v. United States (1946), 326 US 455, 464 ( 66 S Ct 233, 237 ; 90 L Ed 198, 203 ). On the facts as recited in the majority opinion, it clearly appears that the jury could find that Inspector Dembosky had been involuntarily seized.
Moreover, “the gravity and even horrendousness”, People v. Miles, 23 NY2d at 539 ( 297 NYS2d at 922 ), of Adams’ conduct serves to distinguish this case from mere false imprisonment. Inspector Dembosky was confined against his will for a substantial period of time. He was exposed to serious risk of harm. Thus, Inspector Dembosky was subjected to the very abuses the kidnaping statute is intended to prevent. It follows that we should not, as a matter of law, refuse to characterize defendant Adams’ conduct as kidnaping. At least, on this record, the jury should be permitted to so find.
I have discovered but two cases which factually resemble this case of Adams. In each, a prison guard was forcibly seized and held against his will within the prison by inmates. Jury convictions of kidnaping were affirmed in both cases on the law and *578 the facts. The evidence was held sufficient to justify the verdicts. See State v. Randall (1960), 137 Mont 534 ( 353 P2d 1054 ), and State v. Frodsham (1961), 139 Mont 222 ( 362 P2d 413 ). See, also, People v. Shaw (1968), 11 Mich App 255 . Such should he the result in this case.
Defendant’s other contentions are without merit. His conviction should he affirmed.