Opinion
November 15, 1989
Appeal from the Ontario County Court, Reed, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant contends that his convictions were based on legally insufficient evidence and were against the weight of the evidence. Upon our review of the record, we conclude that the evidence was legally sufficient and amply supported the verdict (see, People v Bleakley, 69 N.Y.2d 490, 495). Defendant also contends that the trial court erred in charging sexual misconduct as a lesser included offense of sodomy in the first degree. Although this charge was error (see, People v Laundry, 122 A.D.2d 450, 452), any objection was waived by defendant's request for this charge (see, CPL 300.50; People v Zocchi, 133 A.D.2d 478, 479). Further, defendant contends that his conviction for the crime of kidnapping in the second degree must be reversed because it merges with his conviction of sodomy in the first degree (see, People v Cassidy, 40 N.Y.2d 763). Since the facts adduced at trial establish that the victim's kidnapping was incidental to and inseparable from the commission of the sodomy, the former charge merges with the latter (see, People v Burgess, 107 A.D.2d 703, 704-705; People v Stoesser, 92 A.D.2d 650, 652; People v Tillman, 69 A.D.2d 975).
We find that defendant's remaining contentions are either unpreserved or without merit.