People v. Ramirez

289 A.D.2d 1038, 735 N.Y.S.2d 300, 2001 N.Y. App. Div. LEXIS 12669

Opinion

Order unanimously reversed on the law, motion denied, count one of indictment reinstated and matter remitted to Supreme Court for further proceedings on indictment. Memorandum: We agree with the People that Supreme Court erred in granting defendant’s motion to reduce count one of the indictment from sodomy in the first degree (Penal Law § 130.50 [3]) to attempted sodomy in the first degree. Contrary to the court’s conclusion, penis to anus penetration is not a necessary element of sodomy in the first degree (see, People v Froats, 163 AD2d 906, 906-907, lv denied 76 NY2d 940). Here, the Grand Jury testimony establishes the requisite penis to anus contact between defendant and the victim to support the higher charge (see, People v Gutkaiss, 206 AD2d 584, 587-588, lv denied 84 NY2d 936). (Appeal from Order of Supreme Court, Monroe County, Fisher, J. — Reduce Count of Indictment.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Gorski, JJ.