People v. Daniels

222 A.D.2d 1065, 635 N.Y.S.2d 877, 1995 N.Y. App. Div. LEXIS 14127

Opinion

—Judgment unanimously affirmed. Memorandum: The verdict convicting defendant of rape in the first degree is supported by sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). County Court did not err in refusing to charge sexual abuse in the first degree as a lesser included offense of rape in the first degree, inasmuch as the former requires proof of sexual gratification, but the latter

does not (see, People v Szarka, 163 AD2d 758, 759, lv denied 76 NY2d 944). Nor did the court err in refusing defendant’s request to charge attempted rape in the first degree as a lesser included offense, because there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, CPL 300.50 [1], [2]; People v Glover, 57 NY2d 61, 63).

The record does not support the contention that the court imposed a longer sentence than that offered as part of the plea negotiation because defendant exercised his constitutional right to a trial (see, People v Davis, 167 AD2d 862, 863-864, lv denied 77 NY2d 876). We also reject the contention that defendant was deprived of effective assistance of counsel (see, People v Stauffer, 202 AD2d 1041, lv denied 83 NY2d 915; People v Arnold, 188 AD2d 1020, lv denied 81 NY2d 836). (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Rape, 1st Degree.) Present — Pine, J. P., Lawton, Wesley, Callahan and Davis, JJ.