of defendant as the perpetrator, the error is harmless since there is no substantial controversy regarding defendant's involvement with the victim ( see People v Dayter, 112 AD2d 643, 646, lv denied 66 NY2d 614). Third, to the extent that defendant preserved any issue of prosecutorial misconduct, we are unconvinced that such conduct was so pervasive as to impact defendant's right to a fair trial in light of the curative instructions given by County Court. Moreover, in large measure, defendant's complaints focus on arguments fairly based on the evidence and in response to defendant's arguments ( see e.g. People v Beyer, 21 AD3d 592, 595, lv denied 6 NY3d 752). Fourth, since there is no reasonable view of the evidence that defendant committed the lesser offense of sexual misconduct, but not the greater crime of rape in the first degree, it was not error to refuse to charge sexual misconduct as a lesser included offense ( see People v Maxwell, 260 AD2d 653, 654, lv denied 93 NY2d 1004; People v Cole, 212 AD2d 822, 824, lv denied 86 NY2d 733). Fifth, viewing the totality of the evidence, the law and the circumstances of the case, defendant was provided with meaningful representation ( see People v Baldi, 54 NY2d 137, 147). Defendant is not entitled to perfect representation and, on this record, we discern no constitutional infringement of his right to the effective assistance of counsel. As a final matter, we are persuaded, after careful consideration of, among other things, the facts surrounding this crime, defendant's lack of a significant criminal history and sentences imposed in cases involving comparable convictions ( see e.g. People v Krzykowski, supra at 877; People v Sensourichanh, supra at 886; People v Cole, 212 AD2d 822, lv denied 86 NY2d 733) that defendant's sentence is excessive. We, therefore, exercise our interest of justice jurisdiction to reduce his sentence to a prison sentence of 15 years to be followed by a five-year period of postrelease supervision ( see Penal Law § 70.45).
The New York courts have held repeatedly that sexual misconduct, in a case where it overlaps the alleged felony offense, is “not a lesser included offense of [the felony] since an acquittal of the [felony] charge would also, as a matter of law, be an acquittal of the sexual misconduct charge.” People v. Maxwell, 260 A.D.2d 653, 688 N.Y.S.2d 262 (1999) (citations and internal quotation marks omitted); People v. McEaddy, 30 N.Y.2d 519, 330 N.Y.S.2d 65, 280 N.E.2d 891 (1972) (holding that acquittal of forcible rape charge precluded conviction of sexual misconduct for the same behavior); People v. Cole, 212 A.D.2d 822, 622 N.Y.S.2d 354, 356 (1995) (explaining that where the evidence is such that there is no elemental difference between the alleged felony offense, rape in the first degree, and the sexual misconduct misdemeanor, “[s]exual misconduct is not a lesser included offense of rape in the first degree,” and hence the trial court did not err by refusing to instruct the jury on sexual misconduct). This Court has indicated that sexual misconduct can be a lesser included offense of forcible rape when the jury might doubt the allegation of forcible compulsion but still find that the victim and the perpetrator were the right ages for the incapacity to consent form of the crime.
The defendant contends that there was legally insufficient evidence to support his convictions of rape in the first degree and criminal sexual act in the first degree, as the People failed to establish that the complainant was “physically helpless,” an element of those crimes as charged here ( see Penal Law §§ 130.35[2], 130.50[2] ). Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the complainant was “physically helpless” at the time of this incident, based on, inter alia, the evidence of the complainant's inability to communicate resulting from severe intoxication ( see Penal Law § 130.00[7]; People v. Himmel, 252 A.D.2d 273, 275–276, 686 N.Y.S.2d 504; People v. Ferrer, 250 A.D.2d 860, 861, 672 N.Y.S.2d 795; People v. Cole, 212 A.D.2d 822, 823, 622 N.Y.S.2d 354; People v. Cirina, 143 A.D.2d 763, 533 N.Y.S.2d 305). The defendant failed to preserve for appellate review his contention that there was legally insufficient proof of the intent element of the rape in the first degree and criminal sexual act in the first degree charges in light of proof of his intoxication ( see CPL 470.
ed that defendant would follow through with his threat to kill her ( see People v Nailor, 268 AD2d 695, 697-698), we find that the jury's finding of forcible compulsion with regard to the second rape was supported by the weight of the evidence. We do find merit, however, in defendant's contention that his conviction for rape in the first degree arising out of the second act of intercourse, premised on the victim's physical helplessness (count 11), was contrary to the weight of the evidence ( see Penal Law § 130.35). While the victim briefly testified that, at the time defendant came home and raped her again, she was not "really saying anything" because she was urinating, vomiting and immobile, she fully recalled defendant's actions and never asserted that she was sleeping or otherwise unconscious, or that she was unable to protest as she had done during the first rape ( compare People v Fuller, 50 AD3d 1171, 1174; People v Perkins, 27 AD3d 890, 892, lvs denied 6 NY3d 897, 7 NY3d 761; People v Cole, 212 AD2d 822, 823, lv denied 86 NY2d 733). Thus, with no evidence that the victim was "physically unable to communicate [her] unwillingness" (Penal Law § 130.00), defendant's conviction for this crime must be dismissed.
The court properly denied defendant's request to charge rape in the third degree and sexual misconduct as lesser included offenses of rape in the first degree, and to charge sexual abuse in the third degree as a lesser included offense of sexual abuse in the first degree. On this record, there is no reasonable view of the evidence that defendant committed the lesser offenses but not the greater ( see, People v. Cole, 212 A.D.2d 822, 824, lv denied 86 N.Y.2d 733; People v. Mott, 77 A.D.2d 606, 607; see generally, People v. Glover, 57 N.Y.2d 61, 63). The court properly granted the People's request for a modified circumstantial evidence charge, but erred in instructing the jury on flight, based upon testimony that defendant left the City of Rochester following this incident.