Opinion
October 22, 1990
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgments are affirmed.
The merger doctrine precludes conviction for kidnapping when based upon "acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not be fairly attributed to them" (People v Cassidy, 40 N.Y.2d 763, 767; see also, People v. Geaslen, 54 N.Y.2d 510, 517; People v. Smith, 47 N.Y.2d 83). However, the doctrine does not preclude kidnapping convictions "merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity * * *. Only if the conduct underlying the abduction was incidental to and inseparable from another crime, will the doctrine apply" (People v. Smith, supra, at 87; see also, People v. Miles, 23 N.Y.2d 527, cert denied 395 U.S. 948).
In the instant case, the defendants argue that the rape of which they were found guilty merged with their kidnapping conviction. We disagree. The complainant was driven through Brooklyn and Manhattan and into New Jersey for several hours before ultimately being raped. Under these circumstances, we find that the conduct underlying the abduction was not merely incidental to or inseparable from the rape and, therefore, the crimes did not merge (see, People v. Rodriguez, 70 N.Y.2d 523; People v. Carmichael, 155 A.D.2d 983; People v Kalyon, 142 A.D.2d 650).
We have considered the defendants' remaining contentions and find that they are unpreserved for appellate review or without merit (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245, 248-252; People v. Ray, 127 A.D.2d 859; People v. Lowen, 100 A.D.2d 518). Brown, J.P., Kunzeman, Eiber and Balletta, JJ., concur.