People v. Reglus

Judgment unanimously affirmed. Memorandum: Defendant was charged with two counts of rape in the first degree (Penal Law § 130.35 [1]) and two counts of sodomy in the first degree (Penal Law § 130.50 [1]). He was found guilty, following a bench trial, of two counts of attempted rape in the first degree and two counts of attempted sodomy in the first degree. He contends that County Court erred in admitting a videotape and in considering the lesser included offenses of attempted rape and attempted sodomy. Those issues are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to address them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). In any event, any error regarding the admission of the videotape is harmless (see, People v Crimmins, 36 NY2d 230, 241-242), and the proof adduced at trial supports a finding of attempt even though there is some evidence of consummation (see, People v Shreve, 167 AD2d 698; People v Mendez, 158 AD2d 326, lv denied 76 NY2d 792). Finally, there is no merit to defendant’s contention that the verdict is against 887 the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Erie County Court, McCarthy, J. — Attempted Rape, 1st Degree.) Present — Denman, P. J., Pine, Fallon, Wesley and Balio, JJ.