People v. Perry

180 A.D.2d 766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1992
• Status: Published

Opinion

Appeal by the defendant from (1) a judgment of the Supreme Court, Richmond County (Felig, J.), rendered May 31, 1989, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered November 13, 1989, convicting him of rape in the first degree, sodomy in the first degree, and sexual abuse in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgments are affirmed.

While it was improper for a doctor to testify that the victim had been "raped”, as this constituted the ultimate question for the jury (see, People v Cronin, 60 NY2d 430), given the overwhelming evidence of the defendant’s guilt, we find that the error was harmless (see, People v Crimmins, 36 NY2d 230, 241-242).

The defendant’s contention that it was improper for him to be convicted of rape, sodomy, and sexual abuse for essentially the same attack is without merit. Each one of those offenses is a single-act offense, and the defendant performed separate acts fitting within the definition of the crimes charged, i.e., he had both nonconsenual intercourse and forced oral sex with the victim, and fondled her breasts, buttocks and vagina. Therefore, conviction of each of the three crimes was proper (see, People v Beauchamp, 74 NY2d 639; People v Keindl, 68 NY2d 410, 420-421).

The sentences imposed were not excessive (see, People v Suitte, 90 AD2d 80).

We have considered the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Bracken, J. P., Harwood, Balletta and Copertino, JJ., concur.