Opinion
(1349) KA 99-05051.
November 9, 2001.
(Appeal from Judgment of Oneida County Court, Dwyer, J. — Rape, 1st Degree.)
PRESENT: GREEN, J.P., HAYES, SCUDDER, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of rape in the first degree (Penal Law § 130.35), sodomy in the first degree (Penal Law § 130.50), sexual abuse in the first degree (Penal Law § 130.65), and unlawful imprisonment in the first degree (Penal Law § 135.10). Defendant was sentenced as a second felony offender to concurrent terms of incarceration, the longest of which are determinate terms of 22 years imposed on the counts of rape and sodomy.
Contrary to defendant's contention, County Court was required to sentence defendant as a second felony offender ( see, People v. Martinez, 213 A.D.2d 1072, citing People v. Scarbrough, 66 N.Y.2d 673, revg on dissenting opn of Boomer, J. at 105 A.D.2d 1107, 1107-1109). The sentence imposed does not constitute cruel and unusual punishment ( see, People v. Thompson, 83 N.Y.2d 477, 482-485; People v. Broadie, 37 N.Y.2d 100, 117, cert denied 423 U.S. 950), nor is it unduly harsh or severe.
The evidence is legally sufficient to support the conviction of unlawful imprisonment in the first degree ( see generally, People v. Bleakley, 69 N.Y.2d 490, 495), in particular, to show that defendant restrained the victim "under circumstances which expose[d] the latter to a risk of serious physical injury" (Penal Law § 135.10; see, People v. Vasquez, 191 A.D.2d 659, 659-660; People v. Piotter, 142 A.D.2d 939; People v. Szymczak, 60 A.D.2d 663, 663-664).
The crime of unlawful imprisonment did not merge with the crimes of rape and sodomy ( see, People v. Gonzalez, 80 N.Y.2d 146, 152-153; People v. Cassidy, 40 N.Y.2d 763, 767; cf., People v. Geaslen, 54 N.Y.2d 510, 516-517). The rape and sodomy were completed before defendant, for reasons independent of those crimes, restrained the victim for three hours ( see, People v. Schojan, 272 A.D.2d 932, 934, lv denied 95 N.Y.2d 871; People v. Biro, 227 A.D.2d 944, 945, lv denied 88 N.Y.2d 980; People v. Singleton, 207 A.D.2d 995, lv denied 84 N.Y.2d 1038).
We have considered defendant's remaining contentions and conclude that they are without merit.