People v. Carter

126 A.D.2d 963, 511 N.Y.S.2d 737, 1987 N.Y. App. Div. LEXIS 42071

Opinion

Judgment unanimously affirmed. Memorandum: On this record, there is nothing repugnant about defendant’s conviction of sexual abuse in the first degree, even though the jury acquitted him of sodomy in the first degree involving conduct during the same incident (see, People v Lewis, 112 AD2d 702; People v Crandall, 53 AD2d 956, affd 45 NY2d 851). Here, the proof was legally sufficient to establish that defendant subjected the victim to "sexual contact” by forcible compulsion (Penal Law § 130.65 [1]). Sodomy in the first degree requires proof that defendant engaged in "deviate sexual intercourse” with the victim by forcible compulsion (Penal Law § 130.50 [1]). Since the elements of the crime of which he was convicted differ from the elements of the crime of which he was acquitted, there is no merit to defendant’s claim of repugnancy (see, People v Williams, 124 AD2d 993). We have reviewed defendant’s other claims of error and find them to be without merit. (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J.—sexual abuse, first degree, and another offense.) Present—Dillon, P. J., Callahan, Boomer, Green and Lawton, JJ.