dissenting.
The majority has erred in not recognizing that the trial judge’s ruling was not an acquittal based on the facts. Rather, it was an absurd misapplication of the law, which, fortunately he was able to correct during the trial. The defendant can show no prejudice based on the judge’s error.
At trial, the judge and the State argued as to “whether or not the emotional harm [resulting from the sexual assault] would be sufficient for the jury to consider a first degree kidnapping.” This was not the issue. The judge correctly recognized that the State’s evidence that there had been intercourse and fellatio committed without the victim’s consent, during the period of the kidnapping, had to be accepted for purposes of ruling on defendant’s motion. Having recognized that those facts must be accepted as the foundation for the State’s case, the judge should then have concluded that the sexual assaults themselves constituted harm within the meaning of N.J.S.A. 2C:13-lb and indicated that first degree kidnapping would be charged to the jury. Instead, he erroneously advised the parties that he would not charge first degree kidnapping.
In any event, not only was no judgment of acquittal entered, but more importantly, no factual determination of the trial judge *478compelled or even warranted acquittal. See United States v. DiFrancesco, 449 U.S. 117,129,101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340 (1980). Indeed, quite the contrary was true. Under the facts that the trial judge correctly determined must be considered under State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385 (1967), first degree kidnapping was clearly the appropriate offense. I do not interpret any of the Federal or State authorities cited by the majority as requiring a finding of double jeopardy in these circumstances. I would affirm defendant’s conviction for first degree kidnapping.