Opinion
November 25, 1985
Appeal from the County Court, Nassau County (Harrington, J.).
Judgment affirmed.
Notwithstanding the complainant's testimony of a completed rape, there was a reasonable view of the evidence which would support a finding that defendant only committed the lesser included offense of attempted rape and, therefore, that charge was properly submitted to the jury upon request of the People (CPL 300.50; People v Glover, 57 N.Y.2d 61). Given the relatively small area of the front passenger seat of defendant's car where the attack occurred, rendering actual penetration difficult, if not improbable, coupled with the medical testimony as to absence of seminal fluid and trauma in or about the complainant's vagina, the jury could have reasonably discounted her testimony as to the actual penetration and still have credited her testimony regarding the forcible attempt, which was adequately supported by the evidence (cf. People v Kinnard, 98 A.D.2d 845, affd 62 N.Y.2d 910).
We have examined defendant's remaining contentions and find them to be without merit. Mollen, P.J., Thompson, Bracken and O'Connor, JJ., concur.