Opinion
2319.
November 25, 2003.
Judgment, Supreme Court, New York County (Ira Beal, J.), rendered March 23, 2001, convicting defendant, after a nonjury trial, of two counts each of unlawful imprisonment in the first degree and assault in the third degree, and sentencing him to a conditional discharge with 70 hours of community service, unanimously affirmed.
Zachary H. Johnson, for Respondent.
Raymond J. Aab, for Defendant-Appellant.
Before: Buckley, P.J., Tom, Ellerin, Gonzalez, JJ.
The court's verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court's determinations concerning credibility. The elements of first-degree unlawful imprisonment (Penal Law § 135.10) were satisfied by evidence that defendant, acting in concert with others, restrained the two victims while severely beating them and confining them under conditions that created a danger of suffocation. The extensive testimony of both victims concerning their injuries and resultant pain was sufficient to establish the physical injury element of third-degree assault (see People v. Guidice, 83 N.Y.2d 630, 636).
The unlawful imprisonment conviction did not merge with the assault conviction. The assailants' actions in binding the victims' mouths, hands and feet with tape, placing a plastic bag over one victim's head, and placing the other victim inside a cardboard box, were not necessary and integral to, or inseparable from, the assault (see People v. Gonzalez, 80 N.Y.2d 146).
The court properly exercised its discretion in denying defendant's motion to dismiss the unlawful imprisonment conviction in the interest of justice. There is no compelling factor warranting such dismissal (see CPL 210.40; People v. Insignares, 109 A.D.2d 221, lv denied 65 N.Y.2d 928). Defendant participated in serious and violent attacks on the two victims, and his behavior far exceeded horseplay or practical jokes.
We have considered and rejected defendant's remaining claims.