People v. Cirina

— Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered April 29, 1985, convicting him of sodomy in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. A review of the record reveals that there was legally sufficient evidence to support the finding that the 13-year-old complainant was incapable of consenting to deviate sexual intercourse with the defendant by reason of her being physically helpless (Penal Law § 130.50 [2]; § 130.00 [7]). The substantial testimony regarding the complainant’s voluntary intoxication enabled the trier of fact to infer that she lacked capacity to consent due to her generally weakened condition (see, People v Teicher, 52 NY2d 638, 646-649). Upon the exercise of our factual review power, we are convinced that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). In addition, we find that the trial court correctly refused to instruct the jury regarding the crime of sexual abuse in the third degree (Penal Law § 130.55) as a lesser included offense of the count charging sodomy in the first degree (Penal Law § 130.50 [2]). An examination of these statutes indicates that all degrees of sexual abuse (see, People v Glover, 57 NY2d 61, 63; CPL 1.20 [37]) require as an element the occurrence of sexual contact for the purpose of gratifying the sexual desire [764] of either party, whereas sodomy consists of deviate sexual intercourse and the purposes of such conduct are irrelevant (see, People v Wheeler, 67 NY2d 960, 962; People v Gleixner, 124 AD2d 675; see also, People v Saddlemire, 121 AD2d 791, 793; People v Shabala, 117 AD2d 924, 925). Therefore, sexual abuse is not a lesser included offense of sodomy in the first degree. Moreover, the trial court’s charge concerning the definition of "physically helpless” (Penal Law § 130.00 [7]) was not overbroad or inappropriate (see, People v Teicher, supra; 2 CJI[NY] PL 130.50 [2], at 432). We have considered the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Thompson, J. P., Kunzemari, Eiber and Sullivan, JJ., concur.