People v. Weston

Appellate Division of the Supreme Court of New York

People v. Weston

161 A.D.2d 1166, 555 N.Y.S.2d 981, 1990 N.Y. App. Div. LEXIS 9171

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 11, 1990

StatusPublished

This text of 161 A.D.2d 1166 (People v. Weston) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Weston, 161 A.D.2d 1166, 555 N.Y.S.2d 981, 1990 N.Y. App. Div. LEXIS 9171 (N.Y. Ct. App. 1990).

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Opinion

Judgment unanimously affirmed. Memorandum: The trial court properly refused to charge, sexual abuse in the second degree as a lesser included offense of sodomy in the second degree. Despite the concession by the People to the contrary, sexual abuse is not a lesser included offense of sodomy (see, Matter of Matthew P., 161 AD2d 1195 [decided herewith]). Moreover, here, the victim testified that defendant had anal intercourse with him, whereas defendant, testifying in his own defense, denied any sexual activity whatsoever between him and the victim. Therefore, the jury was faced with a credibility question which could result in either defendant’s conviction for sodomy or his acquittal. Consequently, there was no reasonable view of the evidence which could result in a finding that defendant committed sexual abuse but not sodomy (see, People v Glover, 57 NY2d 61, 63; People v Diaz, 150 AD2d 885, 886, lv denied 74 NY2d 808; People v Blair, 148 AD2d 767, 768, lv denied 74 NY2d 661; People v Norman, 147 AD2d 717; People v Carter, 137 AD2d 826, 827-828, lv denied 71 NY2d 1024). (Appeal from judgment of Herkimer County Court, Bergin, J.—sodomy, second degree.) Present—Callahan, J. P., Doerr, Boomer, Green and Davis, JJ.

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Judgment unanimously affirmed. Memorandum: The trial court properly refused to charge, sexual abuse in the second degree as a lesser included offense of sodomy in the second degree. Despite the concession by the People to the contrary, sexual abuse is not a lesser included offense of sodomy (see, Matter of Matthew P., 161 AD2d 1195 [decided herewith]). Moreover, here, the victim testified that defendant had anal intercourse with him, whereas defendant, testifying in his own defense, denied any sexual activity whatsoever between him and the victim. Therefore, the jury was faced with a credibility question which could result in either defendant’s conviction for sodomy or his acquittal. Consequently, there was no reasonable view of the evidence which could result in a finding that defendant committed sexual abuse but not sodomy (see, People v Glover, 57 NY2d 61, 63; People v Diaz, 150 AD2d 885, 886, lv denied 74 NY2d 808; People v Blair, 148 AD2d 767, 768, lv denied 74 NY2d 661; People v Norman, 147 AD2d 717; People v Carter, 137 AD2d 826, 827-828, lv denied 71 NY2d 1024). (Appeal from judgment of Herkimer County Court, Bergin, J.—sodomy, second degree.) Present—Callahan, J. P., Doerr, Boomer, Green and Davis, JJ.

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Bluebook (online)

161 A.D.2d 1166, 555 N.Y.S.2d 981, 1990 N.Y. App. Div. LEXIS 9171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-weston-nyappdiv-1990.

Opinion

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