Opinion
March 21, 1994
Appeal from the County Court, Westchester County (Cowhey, J.).
Ordered that the judgment is affirmed.
The defendant claims that his convictions for kidnapping in the second degree are barred by the judicially created merger doctrine which precludes a conviction for kidnapping based on acts which are integrally related but subordinate to another substantive crime (see, People v. Gonzalez, 80 N.Y.2d 146, 150; People v. Geaslen, 54 N.Y.2d 510; People v. Salimi, 159 A.D.2d 658). However, this claim is unpreserved for appellate review as a matter of law (see, People v. Salimi, 159 A.D.2d 658, supra; People v. Wilsey, 99 A.D.2d 877), and we decline to exercise our discretion to review it in the interest of justice.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15). Contrary to the defendant's claim, the People proved the element of forcible compulsion by overwhelming evidence beyond a reasonable doubt (see, People v. Thompson, 72 N.Y.2d 410, 415-416; People v. Coleman, 42 N.Y.2d 500, 505; People v. James M., 170 A.D.2d 696; People v. Warren, 186 A.D.2d 697; People v. Smolen, 166 A.D.2d 248; People v. Hill, 163 A.D.2d 852), and the Supreme Court properly denied the defendant's requests to charge the jury on the crime of sexual misconduct (see, People v. Glover, 57 N.Y.2d 61, 63; People v. McEaddy, 30 N.Y.2d 519; People v. Gleixner, 124 A.D.2d 675; People v. Aglio, 112 A.D.2d 440; People v. Simms, 58 A.D.2d 720).
The defendant's remaining contention is unpreserved for appellate review and we decline to review it in the interest of justice. Thompson, J.P., Santucci, Friedmann and Florio, JJ., concur.