DECISION ORDER
ORDERED that the judgment under Indictment No. 699/95 is modified, on the law, by providing that the term of imprisonment imposed on the conviction of kidnapping in the first degree shall be served concurrently with the terms of imprisonment imposed on the convictions of murder in the second degree; as so modified, the judgment under Indictment No. 699/95 is affirmed; and it is further,
ORDERED that the judgment under Indictment No. 1894/94 is affirmed.
The defendant and codefendant, Robert Molina, were being prosecuted for a robbery they perpetrated against Bonnie Meija. Shortly before Ms. Meija was to testify against them in that action, the defendant and Molina abducted her from her home and murdered her to prevent her from testifying. The defendant ultimately signed a statement implicating himself in the murder and kidnapping of Ms. Meija.
The defendant now argues, inter alia, that the Supreme Court should have suppressed his confession and other statements he made to law enforcement authorities because they were obtained in violation of his right to counsel. He contends that because he was represented by counsel on the pending robbery charge when he was questioned about the murder of Ms. Meija, his waiver of his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436) was ineffective. We disagree.
During the course of the defendant's interrogation, the police did not question him about the robbery charges. Rather, the detectives confined their questioning to matters concerning the defendant's possible involvement in Ms. Meija's disappearance. The interrogation did not contain any impermissible questioning that "was not discrete or fairly separable" from the robbery charges, the police did not use the robbery charges as a "crucial element" in securing the defendant's confession to the murder charges, and the police did not exploit "concededly impermissible questioning" related to the robbery charge to advance their interrogation of the murder case (People v. Cohen, 90 N.Y.2d 632, 640; see, People v. Ermo, 47 N.Y.2d 863, 865). Moreover, contrary to the defendant's contention, the robbery and murder charges were not so interwoven in terms of their temporal proximity and factual interrelatedness that any interrogation concerning the victim's disappearance would "almost necessarily" elicit statements pertaining to the robbery (see, People v. Cohen, supra; People v. Vella, 21 N.Y.2d 249; see, People v. Gehy, 238 A.D.2d 354; People v. Marin, 215 A.D.2d 267). Accordingly, the defendant's statements were properly admitted at trial.
The court erred in directing that the sentence imposed on the conviction of kidnapping in the first degree was to run consecutively to the sentence imposed on the convictions of murder in the second degree. The act of kidnapping as charged herein (see, Penal Law § 135.25) was not completed until Ms. Meija was killed as a result of the same acts for which the defendant was charged with murder in the second degree and tampering with a witness. Thus, the sentences imposed must be concurrent (see, People v. Molina, 248 A.D.2d 489).
The parties' remaining contentions are either academic in light of our determination or without merit.