People v. Irvin 99 A.D.2d 760

Appeal by defendant from a judgment of the Supreme Court, Suffolk County (Canudo, J.), rendered December 23, 1980, convicting him of rape in the first degree (four counts), sexual abuse in the first degree (four counts), sodomy in the first degree (three counts), kidnapping in the second degree, assault in the third degree and menacing, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction for kidnapping in the second degree, and the sentence imposed thereon, and dismissing the said count. As so modified, judgment affirmed. As this court recently noted on the appeal of defendant’s codefendant (People v Ruiz, 96 AD2d 603): “The conviction for kidnapping in the second degree cannot stand because the evidence revealed that any detention of the victim was incidental to the crimes of rape and sexual abuse (see People v Cassidy, 40 NY2d 763; see, also, People v Webster, 54 AD2d 703; People v Fraser, 54 AD2d 965; People v Ghee, 53 AD2d 699; People v Mabery, 51 AD2d 557)”. Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.