Judgment, Supreme Court, Bronx County, rendered February 27, 1976, convicting defendant after jury trial of two counts of rape, first degree, sodomy, first degree, and kidnapping, second degree, unanimously modified, on the law, to dismiss the kidnapping count, and otherwise affirmed. Under the facts of this case, the defendant's conviction of kidnapping, second degree, cannot stand since the detention of the complainant was incidental to the commission of the crime of rape. (See People v Cassidy, 40 N.Y.2d 763; People v Toppins, 59 A.D.2d 899.)
Concur — Kupferman, J.P., Lupiano, Silverman and Lynch, JJ.