Opinion
KA 00-01832
February 7, 2003.
Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered July 17, 2000, convicting defendant after a jury trial of, inter alia, rape in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
DEMETRIUS WHITAKER, DEFENDANT-APPELLANT PRO SE. FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law former § 130.35 [3]) and other crimes arising from the alleged sexual assault of a 10-year-old girl. Defendant's contention concerning the admissibility of testimony by the People's medical expert on the subject of "legal penetration" is not preserved for our review (see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). We reject defendant's contention that the alleged error arising from the admission of that testimony need not be preserved (cf. People v. Ahmed, 66 N.Y.2d 307, 310, rearg denied 67 N.Y.2d 647). We conclude that the verdict finding defendant guilty of rape in the first degree is not against the weight of the evidence and that there is legally sufficient evidence of the victim's age (see People v. Bleakley, 69 N.Y.2d 490, 495). We also conclude that the sentence is not unduly harsh or severe. Defendant's further contention raised in the pro se supplemental brief concerning the legal sufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30; People v. Augustine, 235 A.D.2d 915, 917, appeal dismissed 89 N.Y.2d 1072, lv denied 89 N.Y.2d 1088). The remaining contentions raised by defendant in the pro se supplemental brief are without merit. We note in particular that, contrary to defendant's contention, "[s]exual abuse in the first degree is not a lesser included offense of rape in the first degree" (People v. West, 256 A.D.2d 1159, 1159, lv denied 93 N.Y.2d 880).