Opinion
KA 01-01771
May 2, 2003.
Appeal from a judgment of Monroe County Court (Marks, J.), entered May 30, 2001, convicting defendant upon his plea of guilty of sexual abuse in the first degree and after a jury trial of, inter alia, unlawful imprisonment in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of unlawful imprisonment in the second degree (Penal Law 135.05) and endangering the welfare of a child (260.10 [2]), and further convicting him, upon his plea of guilty, of sexual abuse in the first degree (130.65 [1]), a count on which the jury had been unable to reach a verdict. Defendant did not move to withdraw his guilty plea or vacate the judgment of conviction. He thus has failed to preserve for our review his contention that the conviction of sexual abuse should be vacated because County Court failed to advise him at the time of the plea that he would be subject to a period of postrelease supervision ( see People v. Shumway, 295 A.D.2d 916, 917; People v. Minter, 295 A.D.2d 927, lv denied 98 N.Y.2d 712). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v. Crump, 302 A.D.2d 901 [Feb. 7, 2003]; People v. White, 296 A.D.2d 867, lv denied 99 N.Y.2d 540).
Contrary to the contention of defendant, the evidence that he restrained his victim is legally sufficient to support the conviction of unlawful imprisonment ( see Penal Law 135.00; People v. Dennee, 291 A.D.2d 888, 889, lv denied 98 N.Y.2d 650; see also People v. Gray, 288 A.D.2d 897, 897-898, lv denied 97 N.Y.2d 729). The further contention of defendant that his conviction of unlawful imprisonment merged with his conviction of sexual abuse is unpreserved for our review ( see People v Howard, 294 A.D.2d 874, 875, lv denied 98 N.Y.2d 697; People v. Borkowski, 247 A.D.2d 828, lv denied 91 N.Y.2d 970; People v. Hunter, 234 A.D.2d 932, lv denied 89 N.Y.2d 1036) and indeed was forfeited by defendant's plea of guilty to sexual abuse after being found guilty of unlawful imprisonment ( see People v. Hansen, 95 N.Y.2d 227, 230-231; cf. People v Brown, 156 A.D.2d 204; People v. Quackenbush, 98 A.D.2d 875, 875-876). In any event, defendant's contention lacks merit. After defendant completed the acts constituting the crime of sexual abuse, he further unlawfully restrained his victim in a manner that was not essential to the completion of that crime ( see People v. Brown, 112 A.D.2d 1087, 1087-1088) and for reasons, such as concealing or silencing the victim, that were independent of that crime ( see Gray, 288 A.D.2d at 898; see also People v. Moore, 154 A.D.2d 929, lv denied 75 N.Y.2d 773; People v. Piotter, 142 A.D.2d 939, 940; People v. Wilsey, 99 A.D.2d 877).