DECISION ORDER
ORDERED that the judgment under Indictment No. 95-00220 is modified, on the law, by reducing the term of imprisonment imposed on the conviction of driving while intoxicated from an indeterminate term of 1 1/3 to 4 years imprisonment to an indeterminate term of 1 to 3 years imprisonment; as so modified, the judgment under Indictment No. 95-00220 is affirmed; and it is further,
ORDERED that the judgment under Indictment No. 95-00278 is modified, on the law, by vacating the convictions of kidnapping in the second degree and unlawful imprisonment in the first degree, vacating the sentences imposed thereon, and dismissing those counts of that indictment; as so modified, the judgment under Indictment No. 95-00278 is affirmed.
The trial court erred in declining to merge the defendant's kidnapping and unlawful imprisonment convictions into his assault conviction (see, People v. Gonzalez, 80 N.Y.2d 146 ; People v. McMahon, 248 A.D.2d 642 ).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish the defendant' s guilt of assault in the second degree beyond a reasonable doubt.
Viewing the conduct of the defendant's trial counsel under Indictment No. 95-00278 in its entirety, we reject the defendant's contention that he was denied the effective assistance of counsel (see, People v. Benevento, 91 N.Y.2d 708 ; People v. Stacio, 261 A.D.2d 560 [2d Dept., May 17, 1999]; People v. Cain, 255 A.D.2d 596 ). The defendant failed to demonstrate the absence of any strategic or legitimate explanation for his counsel's conduct at trial (see, People v. Benevento, supra; People v. Satterfield, 66 N.Y.2d 796 ). Accordingly, we find that the defendant received meaningful representation (see, People v. Benevento, supra).
The trial court erred in sentencing the defendant to an indeterminate term of 1 1/3 to 4 years imprisonment upon his conviction of driving while intoxicated rather than an indeterminate term of 1 to 3 years imprisonment, as was promised upon the defendant's plea of guilty.
SULLIVAN, J.P., FRIEDMANN, FEUERSTEIN, and SMITH, JJ., concur.