
    The People of the State of New York Respondent, v James Webster, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 2, 1974, convicting him of kidnapping in the second degree (2 counts), robbery in the first degree (2 counts), robbery in the second degree (2 counts), grand larceny in the third degree (2 counts), rape in the first degree, sexual abuse in the first degree and sexual misconduct, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by (1) reducing the convictions of kidnapping in the second degree (under counts 4 and 8 of the indictment) to convictions of unlawful imprisonment in the first degree, and vacating the sentences imposed thereon, and (2) reversing the convictions of grand larceny in the third degree, robbery in the second degree, sexual abuse in the first degree and sexual misconduct (under counts 3, 11, 2, 10, 6 and 7, respectively, of the indictment) and the sentences imposed thereon, and dismissing the said counts. As so modified, judgment affirmed and case remanded to Criminal Term for resentence on the convictions of unlawful imprisonment in the first degree. Defendant was convicted of two counts of kidnapping in the second degree. Those convictions cannot stand. The proof of kidnapping in the second degree (Penal Law, § 135.20) was insufficient; the evidence revealed that any detention of the victims was incidental to the commission of the crimes of rape and robbery (cf. People v Watts, 48 AD2d 863; People v Usher, 49 AD2d 499; People v Lombardi, 20 NY2d 266). Since the crime of unlawful imprisonment in the first degree was established beyond a reasonable doubt, the judgment has been modified accordingly (see People v Ennis, 50 AD2d 935). Further, where a verdict is comprised of inclusory counts, a verdict of guilty on the highest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b]). Under the facts of this case, defendant could not have committed the crimes of robbery in the first degree and rape in the first degree without having committed the crimes of robbery in the second degree, grand larceny in the third degree, sexual abuse in the first degree, and sexual misconduct (cf. People v Grier, 37 NY2d 847; People v Johnson, 39 NY2d 364; People v Williams, 50 AD2d 911). Accordingly, the convictions of the latter crimes must be dismissed. The other points raised by the defendant on this appeal have, on consideration, been found to be without merit. Martuscello, Acting P. J., Latham, Cohalan, Rabin and Hawkins, JJ., concur.  