Opinion
KA 01-01772
May 2, 2003.
Appeal from a judgment of Genesee County Court (Noonan, J.), entered May 18, 2000, convicting defendant after a jury trial of, inter alia, sodomy in the first degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, 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 following a jury trial of sodomy in the first degree (Penal Law 130.50) and sodomy in the third degree (130.40 [2]). Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury that it had to reach a unanimous verdict with respect to the manner in which he forcibly compelled the victim to engage in deviate sexual relations, i.e., by physical force or threat. In any event, that contention lacks merit ( see generally People v. Clyburn, 212 A.D.2d 1030, lv denied 85 N.Y.2d 971). Defendant failed to preserve for our review his further contention that the evidence of forcible compulsion is legally insufficient to support the conviction of sodomy in the first degree ( see People v. Gray, 86 N.Y.2d 10, 19) and, in any event, that contention is lacking in merit. Viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), the evidence is legally sufficient to establish the element of forcible compulsion by use of physical force and by a threat that placed the victim in fear of immediate death or physical injury ( see 130.00 [8] [a], [b]; Clyburn, 212 A.D.2d at 1030-1031; see generally People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495), particularly in view of defendant's confession. The sentence is not unduly harsh or severe.