Opinion
May 11, 1990
Appeal from the Herkimer County Court, Bergin, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The trial court properly refused to charge sexual abuse in the second degree as a lesser included offense of sodomy in the second degree. Despite the concession by the People to the contrary, sexual abuse is not a lesser included offense of sodomy (see, Matter of Matthew P., 161 A.D.2d 1195 [decided herewith]). Moreover, here, the victim testified that defendant had anal intercourse with him, whereas defendant, testifying in his own defense, denied any sexual activity whatsoever between him and the victim. Therefore, the jury was faced with a credibility question which could result in either defendant's conviction for sodomy or his acquittal. Consequently, there was no reasonable view of the evidence which could result in a finding that defendant committed sexual abuse but not sodomy (see, People v. Glover, 57 N.Y.2d 61, 63; People v Diaz, 150 A.D.2d 885, 886, lv denied 74 N.Y.2d 808; People v Blair, 148 A.D.2d 767, 768, lv denied 74 N.Y.2d 661; People v Norman, 147 A.D.2d 717; People v. Carter, 137 A.D.2d 826, 827-828, lv denied 71 N.Y.2d 1024).