Opinion
December 22, 1995
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The verdict convicting defendant of rape in the first degree is supported by sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). County Court did not err in refusing to charge sexual abuse in the first degree as a lesser included offense of rape in the first degree, inasmuch as the former requires proof of sexual gratification, but the latter does not (see, People v Szarka, 163 A.D.2d 758, 759, lv denied 76 N.Y.2d 944). Nor did the court err in refusing defendant's request to charge attempted rape in the first degree as a lesser included offense, because there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, CPL 300.50, [2]; People v Glover, 57 N.Y.2d 61, 63).
The record does not support the contention that the court imposed a longer sentence than that offered as part of the plea negotiation because defendant exercised his constitutional right to a trial (see, People v Davis, 167 A.D.2d 862, 863-864, lv denied 77 N.Y.2d 876). We also reject the contention that defendant was deprived of effective assistance of counsel (see, People v Stauffer, 202 A.D.2d 1041, lv denied 83 N.Y.2d 915; People v Arnold, 188 A.D.2d 1020, lv denied 81 N.Y.2d 836).