Opinion
May 31, 1996
Appeal from the Niagara County Court, Hannigan, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention that defendant was deprived of a fair trial by the admission of photographs of the victim. The photographs showed the victim's injuries and were relevant to the issue whether the acts involved were consensual. Thus, the photographs were properly admitted ( see, People v. Wright, 192 A.D.2d 875, 876-877, lv denied 82 N.Y.2d 809).
Defendant failed to preserve for our review his further contention that his conviction of kidnapping in the second degree is barred by the merger doctrine ( see, People v. McNamara, 186 A.D.2d 984, lv denied 81 N.Y.2d 791; People v. Salimi, 159 A.D.2d 658, lv denied 76 N.Y.2d 742). In any event, because the asportation and detention of the complainant were neither incidental to nor inseparable from the rape, the merger doctrine does not apply ( see, People v. Masterson, 177 A.D.2d 1042, lv denied 79 N.Y.2d 950; People v. Salimi, supra). There also is no merit to the contention of defendant that County Court erred in denying his motion to suppress evidence recovered at his home and statements made by him to the police. The record supports the suppression court's determination that the police entered defendant's residence based upon their reasonable belief that they were confronted with an emergency situation; their entry "was not primarily motivated by the intent to arrest [defendant] and seize evidence" ( People v. Diaz, 170 A.D.2d 618, 619, lv denied 79 N.Y.2d 855).
Finally, the sentence imposed is not unduly harsh or severe.