Opinion
May 2, 1994
Appeal from the Supreme Court, Queens County (Friedmann, J.).
Ordered that the judgment is modified, on the law and the facts, by reversing the convictions for kidnapping in the second degree under counts 2, 12 and 28 as specified in Queens County superseding Indictment No. 4775/89, vacating the sentences imposed thereon, and dismissing those counts of the indictment; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision that the terms imposed for sexual abuse in the first degree under counts 5, 6, 7, 8, 9, 13, 14, 18 and 19 as specified in Queens County superseding Indictment No. 4775/89 shall run consecutively to each other and substituting therefor provisions that counts 5 and 6 shall run concurrent with each other but consecutive to all other counts, that counts 13 and 14 shall run concurrent with each other but consecutive to all other counts, and counts 18 and 19 shall run concurrent with each other but consecutive to all other counts; as so modified, the judgment is affirmed.
The merger doctrine requires the reversal of the defendant's convictions for all three counts of kidnapping in the second degree. The evidence demonstrates that the asportations of the three victims were incidental to the commission of sexual assaults (see, People v. Cassidy, 40 N.Y.2d 763; People v Poladian, 189 A.D.2d 911; People v. Black, 189 A.D.2d 883; People v. Johnson, 181 A.D.2d 914; People v. Williams, 141 A.D.2d 783; People v. Bailey, 133 A.D.2d 462; People v. Burgos, 107 A.D.2d 1041; but see, People v. Gonzalez, 80 N.Y.2d 146 ; People v Sceravino, 193 A.D.2d 824).
Furthermore, the defendant's acts under counts 5 and 6 constitute one transaction separate and distinct from the sexual assault charged in counts 7, 8 and 9. While concurrent terms must be imposed for those acts representing a single continuous sexual assault (see, People v. Hurlbut, 178 A.D.2d 958; People v Jackson, 169 A.D.2d 887; People v. Williams, 141 A.D.2d 783, supra; People v. Scott, 124 A.D.2d 684, cert denied 500 U.S. 943), consecutive terms may be imposed for separate and distinct sexual assaults (see, People v. Williams, supra; People v. Telford, 134 A.D.2d 632; People v. Maxwell, 122 A.D.2d 435). Similarly, as the defendant's acts under counts 13 and 14 constitute a single continuous sexual assault on a second victim and the defendant's acts under counts 18 and 19 represent a continuous sexual assault against a third victim, the imposition of consecutive terms of imprisonment was warranted (see, People v. Cohen, 201 A.D.2d 494; People v. Halm, 180 A.D.2d 841; People v. Patterson, 165 A.D.2d 886).
We have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Lawrence, J.P., O'Brien, Joy and Florio, JJ., concur.