Majority
Order unanimously reversed on the law, motion denied, count one of indictment reinstated and matter remitted to Supreme Court for further proceedings on indictment. Memorandum: We agree with the People that Supreme Court erred in granting defendant’s motion to reduce count one of the indictment from sodomy in the first degree (Penal Law § 130.50 [3]) to attempted sodomy in the first degree. Contrary to the court’s conclusion, penis to anus penetration is not a necessary element of sodomy in the first degree (see, People v Froats, 163 AD2d 906 , 906-907, lv denied 76 NY2d 940 ). Here, the Grand Jury testimony establishes the requisite penis to anus contact between defendant and the victim to support the higher charge (see, People v Gutkaiss, 206 AD2d 584 , 587-588, lv denied 84 NY2d 936 ). (Appeal from Order of Supreme Court, Monroe County, Fisher,