People v. Hutchinson

213 A.D.2d 1048, 624 N.Y.S.2d 331, 1995 N.Y. App. Div. LEXIS 3856

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of attempted murder in the second degree, four counts of rape in the first degree, and one count each of sodomy in the first degree and assault in the second degree, defendant contends that reversal of the sodomy conviction is required. He was charged with sodomy in the first degree in both counts six and seven of the indictment and was acquitted of count seven. He contends that the failure of Supreme Court to specify in its jury instructions that oral sodomy was charged in count six and that anal sodomy was charged in count seven resulted in an "incoherent” verdict. We disagree. The complainant testified first concerning oral

sodomy and then anal sodomy, and thus her testimony was linked sequentially to the counts. In addition, defense counsel on summation referred to "the second one” as anal intercourse. It is clear that defendant was convicted of oral sodomy (see, People v Drayton, 198 AD2d 770; cf., People v Foreman, 168 AD2d 928, lv denied 77 NY2d 994; People v McNab, 167 AD2d 858).

We have reviewed defendant’s remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Kasler, J.—Attempted Murder, 2nd Degree.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.