Opinion
December 9, 1985
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Judgment modified, on the law, by vacating defendant's conviction of sexual abuse in the first degree as charged in the fifth count of the indictment and unlawful imprisonment in the first degree as charged in the seventh count of the indictment, and the sentences imposed thereon, and dismissing said counts of the indictment. As so modified, judgment affirmed.
The fifth count of the indictment charged defendant with subjecting the victim to sexual contact "by touching her vagina by means of forcible compulsion". However, contrary to the People's contention, the record is barren of any evidence indicating that defendant touched the victim's vagina other than during the course of the rape. Accordingly, defendant's conviction on that count of sexual abuse must be vacated, and that count of the indictment dismissed (see, People v Jamison, 62 A.D.2d 1042, affd 47 N.Y.2d 882).
Finally, the People concede that defendant's conviction for unlawful imprisonment must be vacated, since the crime of unlawful imprisonment under the circumstances of this case merged into the higher grade offense of rape in the first degree with which defendant was charged and convicted (see, People v Geaslen, 54 N.Y.2d 510). Mangano, J.P., Thompson, Bracken and Brown, JJ., concur.