Opinion
November 10, 1987
Appeal from the Supreme Court, Monroe County, Reed, J.
Present — Dillon, P.J., Denman, Balio, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted, in accordance with the following memorandum: The court erred in refusing defendant's request to charge sexual abuse in the third degree (Penal Law § 130.55) as a lesser included offense of sexual abuse in the first degree (Penal Law § 130.65). It is impossible to commit sexual abuse in the first degree by forcible compulsion without concomitantly, and by the same conduct, committing sexual abuse in the third degree, since sexual contact accomplished by forcible compulsion is, by definition, without the victim's consent (see, Penal Law § 130.05 [a]). Since there is a reasonable view of the evidence that defendant touched the victim without her consent but not by forcible compulsion, the court should have granted defendant's request to charge (see, People v. Glover, 57 N.Y.2d 61).