People v. Byard

58 A.D.2d 876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1977
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 18, 1975, convicting him of the crimes of attempted rape in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The relevant evidence in the record, which consists of the testimony of the complainant and her sons and defendant’s alibi testimony, presented a question of credibility which the jury could properly resolve against the defendant beyond a reasonable doubt. That determination, therefore should not be disturbed. Defendant also contends that, on this record, the crime of sexual abuse in the first degree is a lesser included crime of attempted rape in the first degree, and that, therefore, his conviction of the former crime must be dismissed pursuant to CPL 300.40 (subd 3, par [b]). This contention is without merit. The crime of sexual abuse in the first degree involves the subjecting of another person to "sexual contact” by forcible compulsion (Penal Law, § 130.65). The phrase "sexual contact” is defined as "any touching of the sexual or other intimate parts of a person * * * for the purpose of gratifying sexual desire” (Penal Law, § 130.00, subd 3). Since the complainant testified that defendant fondled her "all over”, it is clear on this record that the crime of sexual abuse was not a lesser included crime of attempted rape in the first degree. Defendant’s conviction of the former crime must therefore stand. Hopkins, J. P., Margett, Shapiro and Suozzi, JJ., concur.