The People of the State of New York, Respondent, v. Nelson Santiago, Appellant

The People of the State of New York, Respondent, v Nelson Santiago, Appellant. [MAJORITY] Appeal by defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered January 13,1982, convicting him of rape in the first degree and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by vacating the conviction of unlawful imprisonment in the first degree and the sentence imposed thereon and said count of the indictment is dismissed. As so modified, judgment affirmed. Defendant asserts, and the People agree, that any restraint imposed upon complainant by the defendant in this case was clearly wholly incidental to and inseparable from the substantive crime of rape. Accordingly, the merger doctrine precludes the within conviction of defendant for unlawful imprisonment in the first degree (People v Stoesser, 92 AD2d 650,652; see People v Geaslen, 54 NY2d 510; People v Smith, 47 NY2d 83). We have considered the other contentions raised by defendant and find them either to be without merit or unpreserved for review. Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.