Appeal from a judgment of the Orleans County Court (Robert C. Noonan, J.), rendered February 18, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, kidnapping in the second degree, sodomy in the first degree, criminal possession of a weapon in the second degree, sexual abuse in the first degree, and menacing in the second degree.
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 upon a jury verdict of murder in the second degree (Penal Law § 125.25 [2]), kidnapping in the second degree (§ 135.20),
To the extent that defendant contends that the conviction of kidnapping is barred by the merger doctrine, he failed to preserve that contention for our review (see People v Biro, 227 AD2d 944, 945 [1996], lv denied 88 NY2d 980 [1996]). In any event, defendant’s contention is without merit. “The merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d 763, 767 [1976]). Where, however, the abduction and the underlying crimes are discrete, the merger doctrine does not apply (see People v Gonzalez, 80 NY2d 146, 153 [1992]). In this case, defendant forced the wife of the murder victim to accompany him to a motel by threatening her with a weapon. The motel was approximately 30 to 45 minutes away from the scene of the murder of the first victim. Once defendant and the wife of the murder victim were in the motel room, another hour passed before defendant committed the offense of sexual abuse, and then another hour or more passed before defendant committed the offense of sodomy. Under the circumstances of this case, the abduction was discrete from the underlying sexual assault offenses. “The [abduction] was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. It was a crime in itself’ (id.; see People v Smith, 47 NY2d 83, 87 [1979]; Biro, 227 AD2d at 945; see also People v St. Louis, 161 AD2d 739, 740 [1990], lv denied 76 NY2d 864 [1990]).
Defendant’s general motion to dismiss did not preserve for
Contrary to defendant’s contention, the sentence is not illegal insofar as the court ordered that the term of imprisonment for sodomy shall run consecutively to the terms of imprisonment for murder, criminal possession of a weapon, and menacing (see generally People v Ramirez, 89 NY2d 444, 451 [1996]). Also contrary to defendant’s contention, the sentence is not unduly harsh or severe. We have examined defendant’s remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.P., Scudder, Smith, Pine and Hayes, JJ.
