Opinion
September 30, 1994
Appeal from the Cayuga County Court, Contiguglia, J.
Present — Denman, P.J., Pine, Lawton, Wesley and Davis, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention that defendant's conviction of assault in the second degree is not supported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). By failing to challenge the jury verdict on the basis that the conviction for unlawful imprisonment merged with the other substantive crimes, defendant failed to preserve that issue for review (see, People v. Salimi, 159 A.D.2d 658, lv denied 76 N.Y.2d 742; People v Udzinski, 146 A.D.2d 245, 250, lv denied 74 N.Y.2d 853). In any event, that issue is without merit because defendant's restraint and asportation of complainant were not merely incidental to and inseparable from the acts that the People alleged constituted assault and rape (see, People v. Salimi, supra; People v Masterson, 177 A.D.2d 1042, lv denied 79 N.Y.2d 950; People v Piotter, 142 A.D.2d 939).
We have reviewed defendant's remaining contentions and conclude that they are without merit.