People v. Russell

127 A.D.2d 805, 512 N.Y.S.2d 5, 1987 N.Y. App. Div. LEXIS 43292

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Santagata, J.), rendered March 22, 1985, convicting him of rape in the first degree (two counts), sodomy in the first degree (two counts), and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is modified, on the law, by reversing the conviction of unlawful imprisonment in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’s conviction of unlawful imprisonment in the second degree merged with his rape and sodomy convictions under the doctrine enunciated in People v Geaslen (54 NY2d 510, 516-517). The proof in this case revealed that the unlawful imprisonment was incidental to the commission of the sex crimes; accordingly, the conviction of unlawful imprisonment in the second degree must be reversed (see, People v Burgess, 107 AD2d 703). Lawrence, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.