Opinion
December 20, 1989
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Callahan, J.P., Green, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The suppression court properly determined that the People proved beyond a reasonable doubt that defendant's inculpatory statement, made after defendant had been given his Miranda warnings, was voluntary (see, People v Huntley, 15 N.Y.2d 72, 78).
Defendant failed to preserve for our review his claim that the jury verdict was repugnant because he failed to raise that objection before the jury was discharged (see, People v McDavis, 97 A.D.2d 302, 305). In any event, we conclude that the verdict was not repugnant because the trial court, in its charge to the jury with respect to the sodomy count, did not specify that the element of forcible compulsion required the use or threatened use of a knife. Consequently, the jury was free to consider other evidence regarding defendant's use or threatened use of force in reaching its verdict on the sodomy count. Thus, defendant's acquittal on the count of criminal possession of a weapon, to wit: a knife, was not conclusive with respect to the "forcible compulsion" element of the crime of sodomy (see, People v Tucker, 55 N.Y.2d 1, 7, rearg denied 55 N.Y.2d 1039).
We have reviewed the remaining contentions asserted by defendant and we find them to be either unpreserved for our review or, where preserved, lacking in merit.