Opinion
April 18, 1995
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
Defendant's claim regarding the court's failure to charge the jury on an element of rape in the first degree is unpreserved for review as a matter of law (People v Smolen, 166 N.Y.2d 248, 249, lv denied 77 N.Y.2d 844), and we decline to review it in the interest of justice. If we were to review it, we would find that where defendant was charged with attempted rape in the first degree, the court's instructions as a whole adequately conveyed to the jury that it must find that defendant attempted to engage in sexual intercourse with the victim, notwithstanding its failure to charge that sexual intercourse "occurs upon penetration, however slight." The court also properly instructed the jury that forcible compulsion was an element of attempted sodomy in the first degree (People v Williams, 81 N.Y.2d 303, 316), even though it did not repeat the definition of the term which it had provided to the jury during its earlier charge with respect to attempted rape in the first degree.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Asch and Williams, JJ.