Opinion
June 13, 1991
Appeal from the County Court of Rensselaer County (Harris, J.).
Defendant was indicted in June 1989 for rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, rape in the third degree and sodomy in the third degree. The charges contained in the indictment stemmed from a May 29, 1989 incident in which the victim was attacked in a wooded area in the Town of East Greenbush, Rensselaer County. Following a trial, the jury found defendant guilty of all but the sodomy charges. County Court then sentenced defendant to consecutive prison terms of 8 1/3 to 25 years for the first degree rape conviction and 2 1/3 to 7 years for the first degree sexual abuse conviction, and a concurrent prison term of 1 1/3 to 4 years for the third degree rape conviction. This appeal followed.
Defendant has withdrawn the argument asserted in his brief that County Court erred in admitting evidence of sperm found in the victim's body without a proper foundation.
We turn first to defendant's contention that County Court should have dismissed the sexual abuse count because there was no evidence of forcible compulsion adduced during the People's case. Viewing the record in a light most favorable to the People (People v Thompson, 72 N.Y.2d 410, 413), there is a valid line of reasoning and permissible inferences which could lead a rational person to the jury's conclusion that the element of forcible compulsion was established (see, supra). The victim's description of being grabbed and pushed to the ground and of defendant's threat "that he would kill [her] with his bare hands" if she screamed again, the evidence of bruise marks on her arms, and the discrepancy in age and strength between defendant and the victim cumulatively could be found to have established the element of forcible compulsion (see, Penal Law § 130.00; People v Pace, 145 A.D.2d 834, 835, lv denied 73 N.Y.2d 894; see also, People v Thompson, supra, at 415-416; People v Di Gioia, 168 A.D.2d 865). We likewise reject the claim that County Court committed reversible error in excluding evidence of the victim's prior sexual history. Contrary to defendant's assertion, the victim did not testify that she was a virgin; rather, she testified that she told defendant during the attack that she was a virgin. As such, CPL 60.42 (3) does not apply (cf., People v James, 98 A.D.2d 863, 864). Moreover, because the proffered evidence had no probative value, County Court acted well within its discretion in refusing to receive it in the interest of justice (see, CPL 60.42; People v Mandel, 48 N.Y.2d 952, 954, appeal dismissed, cert denied 446 U.S. 949; People v Rockwell, 97 A.D.2d 853, 854).
Finally, we find merit in defendant's argument that County Court erred in imposing consecutive sentences for his first degree rape and first degree sexual abuse convictions. Our review of the record establishes that the acts constituting the sexual abuse were an integral part of the rape (see, People v Jackson, 169 A.D.2d 887; People v Smiley, 121 A.D.2d 274, 275, lv denied 68 N.Y.2d 817; People v Hatch, 105 A.D.2d 549, 550-551), and not the result of disparate and separate acts (see, Penal Law § 70.25; People v Jackson, supra). Inasmuch as "there was no evidence that any sexual abuse occurred outside of the rape" (People v Jackson, supra, at 890), defendant's sentences should run concurrently.
Weiss, J.P., Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as directed defendant to serve consecutive terms of imprisonment for the convictions of the crimes of rape in the first degree and sexual abuse in the first degree; said sentences for these crimes to run concurrently; and, as so modified, affirmed.