Opinion
2000-09630
Submitted April 19, 2002
July 15, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered October 4, 2000, convicting him of kidnapping in the first degree (three counts), kidnapping in the second degree (three counts), burglary in the first degree (four counts), criminal possession of a weapon in the third degree, unlawful imprisonment in the first degree (four counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (V. Marika Meis of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William C. Milaccio of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the convictions of kidnapping in the second degree, and the convictions of burglary in the first degree under counts fifteen, sixteen and seventeen of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The People correctly concede that kidnapping in the second degree is a lesser-included offense of kidnapping in the first degree and that the defendant's convictions of those offenses must be vacated (see CPL 1.20; People v. Glover, 57 N.Y.2d 61, 63).
The defendant's contention that the counts charging him with burglary in the first degree are multiplicitous is unpreserved for appellate review (see People v. Cruz, 96 N.Y.2d 857). Nevertheless, in the exercise of our interest of justice jurisdiction, we vacate the defendant's convictions of burglary in the first degree under counts fifteen, sixteen and seventeen of the indictment. An indictment is multiplicitous when two or more counts charge the same crime (see People v. Senisi, 196 A.D.2d 376). Counts fourteen through seventeen in the indictment charged the defendant with unlawfully entering and remaining in the same dwelling and, in the course thereof, displaying a weapon (see Penal Law § 140.30). Although the People contend that four separate burglary counts were permissible because the weapon was displayed to four individuals who lived in the dwelling, there was only one unlawful entry. Thus, the defendant could be convicted of only one count under Penal Law § 140.30(4) (see People v. Griswold, 174 A.D.2d 1038; People v. Martinez, 126 A.D.2d 942).
The defendant's contentions regarding prosecutorial misconduct are in large part unpreserved for appellate review, and, in any event, do not warrant reversal (see People v. Galloway, 54 N.Y.2d 396; People v. Russo, 201 A.D.2d 512, 513, affd 85 N.Y.2d 872).
FEUERSTEIN, J.P., O'BRIEN, ADAMS and COZIER, JJ., concur.