People v. Howard

214 A.D.2d 418, 625 N.Y.S.2d 193, 1995 N.Y. App. Div. LEXIS 4353

Opinion

Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered May 14, 1992, convicting defendant, after a jury trial, of attempted rape in the first degree, attempted sodomy in the first degree, assault in the second degree, and sexual abuse in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years on the attempted rape and sodomy counts, and 3½ to 7 years on the assault and sexual abuse counts, unanimously affirmed.

Defendant’s claim regarding the court’s failure to charge the jury on an element of rape in the first degree is unpreserved for review as a matter of law (People v Smolen, 166 NY2d 248, 249, lv denied 77 NY2d 844), and we decline to review it in the interest of justice. If we were to review it, we would find that where defendant was charged with attempted rape in the first degree, the court’s instructions as a whole adequately conveyed to the jury that it must find that defendant attempted to engage in sexual intercourse with the victim, notwithstanding its failure to charge that sexual intercourse "occurs upon penetration, however slight.” The court also properly instructed the jury that forcible compulsion was an element of attempted sodomy in the first degree (People v Williams, 81 NY2d 303, 316), even though it did not repeat the definition of the term which it had provided to the jury during its earlier charge with respect to attempted rape in the first degree.

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Roesnberger, Wallach, Asch and Williams, JJ.