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People v. Daniels

222 A.D.2d 1065 Court N.Y. App. Div. Decision date 1995-12-22 English

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p. 1065
The People of the State of New York, Respondent, v Tracy Daniels, Appellant.
[635 NYS2d 877]

—Judgment unanimously affirmed. Memorandum: The verdict convicting defendant of rape in the first degree is supported by sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495). County Court did not err in refusing to charge sexual abuse in the first degree as a lesser included offense of rape in the first degree, inasmuch as the former requires proof of sexual gratification, but the latter

p. 1066
does not (see, People v Szarka, 163 AD2d 758 , 759, lv denied 76 NY2d 944 ). Nor did the court err in refusing defendant’s request to charge attempted rape in the first degree as a lesser included offense, because there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, CPL 300.50 [1], [2]; People v Glover, 57 NY2d 61 , 63).

The record does not support the contention that the court imposed a longer sentence than that offered as part of the plea negotiation because defendant exercised his constitutional right to a trial (see, People v Davis, 167 AD2d 862 , 863-864, lv denied 77 NY2d 876 ). We also reject the contention that defendant was deprived of effective assistance of counsel (see, People v Stauffer, 202 AD2d 1041 , lv denied 83 NY2d 915 ; People v Arnold, 188 AD2d 1020 , lv denied 81 NY2d 836 ). (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Rape, 1st Degree.) Present — Pine, J. P., Lawton, Wesley, Callahan and Davis, JJ.

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