People v. Toppins

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 16, 1975, convicting him of rape in the first degree and kidnapping in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reduc 900 ing the conviction of kidnapping in the second degree to a conviction of unlawful imprisonment in the first degree, and vacating the sentence imposed thereon. As so modified, judgment affirmed and case remanded to Criminal Term for resentence on the conviction of unlawful imprisonment in the first degree. Under the facts and circumstances of this case, the errors committed at the trial were harmless. The proof of appellant’s guilt was overwhelming and there is no rational possibility that the errors contributed to his conviction (see People v Crimmins, 36 NY2d 230). As the People concede, the defendant-appellant’s conviction of kidnapping in the second degree cannot stand since the detention of the complaining witness was incidental to the commission of the crime of rape (see People v Cassidy, 40 NY2d 763; People v Webb, 59 AD2d 618). However, this fact does not preclude a conviction of the crime of unlawful imprisonment, which was established beyond a reasonable doubt (see People v Watson, 57 AD2d 143; People v Webb, supra). Hargett, J. P., Rabin, Titone and Hollen, JJ., concur.