Putting Our Experience and Reputation to Work For You

Putting Our Experience and Reputation to Work For You

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What Is The Merger Doctrine?


In New York, a person may be found guilty of false imprisonment and in some cases even kidnapping when he restrains or moves a person to another place (see Penal Law §§ 135.00

[1], [2]; 135.05; 135.20). Some defense attorneys have argued that the technical application of these statutes is too broad. They could arguably apply any time a defendant uses force or moves another person during the commission of another crime such as assault.

To avoid dual convictions, the courts have created the merger doctrine. Under it, the court may vacate a false imprisonment or kidnapping conviction where the period of abduction is brief and there is no kidnapping flavor to the case. Under these circumstances, the charges are said to merge together.

Applying the merger doctrine, courts have vacated false imprisonment and kidnapping convictions in a variety of circumstances, including where the defendant moved the victim or prevented the victim from escaping during the commission of the crime. Problem solved, correct? The definition has been narrowed by the court. Think again.

Critics of the merger doctrine have sought to re-broaden these statutes by creating exceptions. For example, a court may refuse to apply the merger doctrine where a defendant’s conduct is considered “egregious.” But isn’t every violent criminal offense egregious? Where do we draw the line?

It may be difficult to advise your client on the application of the merger doctrine. To make matters worse, the modern trend in New York seems to be for courts to wait to decide the issue until after the jury verdict, when the defendant may no longer be considered sympathetic.

Perhaps a good defense in a merger case is to outline the application of the doctrine in other cases without getting too academic for the justice system. Be sure to show the court how other similar conduct passed the merger test and was not considered as “egregious” for purposes of the exception. Most importantly, try to gain sympathy for your client and explain that the merger doctrine does not provide your client with a windfall – it simply prevents dual convictions for the same conduct.