People v. Hackney

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered January 19, 2000, convicting him of rape in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant did not object to the court’s omitting from its charge to the jury the caveat under Penal Law 130.30 that an actor is not guilty of rape in the second degree if he or she is married to the underaged victim. A claim that the court neglected to charge a necessary element of a crime is not exempt from the requirement of preservation (see e.g. People v Sappleton, 234 AD2d 81, 82; see also People v Harris, 273 AD2d 807; People v Mena, 237 AD2d 233). In any event, there were no facts tending to suggest that the defendant might have been married to the victim when he raped her. Rather, all of the evidence indicates that the parties were strangers to each other on the day of the incident. The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Florio, J.P., Smith, Krausman and Townes, JJ., concur.