Opinion
July 5, 1988
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of unlawful imprisonment in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The factual basis for the conviction for unlawful imprisonment in the second degree was the victim's testimony that the defendant accosted her at the front door of her residence, and, while holding her around the neck, pushed her upstairs to her bedroom where he forcibly detained and raped her. The victim was able to flee the house immediately after the rape. Under these circumstances, the merger doctrine is applicable and mandates dismissal of the unlawful imprisonment charge (see, People v Geaslen, 54 N.Y.2d 510, 517). The merger doctrine is applicable "where any restriction of the victim's movements was wholly incidental to the simultaneous commission of [another substantive] crime" (People v. Geaslen, supra, at 517; see also, People v. Bailey, 133 A.D.2d 462, 463, lv denied 71 N.Y.2d 892; People v. Brown, 115 A.D.2d 550, 551, lv denied 67 N.Y.2d 881; People v. Burgess, 107 A.D.2d 703, 705). In this case, the imprisonment was limited, brief and incidental to the rape. Thus, the count of unlawful imprisonment merged with the rape count (see, People v. Russell, 127 A.D.2d 805, lv granted 70 N.Y.2d 717; People v. Wachtel, 124 A.D.2d 613, lv denied 69 N.Y.2d 835).
As to the defendant's claim of improper inferential bolstering, no objection was raised to this testimony. Therefore, the claim is not preserved for appellate review as a matter of law (CPL 470.05; People v. Ray, 127 A.D.2d 859, lv denied 70 N.Y.2d 654). Furthermore, under the circumstances of this case, which include clear and strong proof of the defendant's identity as the perpetrator, we decline to reach this claim in the interest of justice (see, People v. Simmons, 121 A.D.2d 579, lv denied 69 N.Y.2d 833). Thompson, J.P., Spatt, Sullivan and Harwood, JJ., concur.