People v. Ford — 76 N.Y.2d 868

Majority

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The People of the State of New York, Respondent, v Victor C. Ford, Jr., Appellant.

Decided September 11, 1990 Decided September 11, 1990

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APPEARANCES OF COUNSEL

Frank J. Nebush, Jr., Public Defender (Esther Cohen Lee of counsel), for appellant.

Barry M. Donalty, District Attorney (William M. Weber of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Sexual abuse in the first degree (Penal Law § 130.65) is not a lesser included offense of first degree sodomy (Penal Law § 130.50), as it is not impossible to commit the latter crime without concomitantly, by the same conduct, committing the former (see, CPL 1.20 [37]; People v Glover, 57 NY2d 61 ). The crime of sexual abuse requires sexual contact (Penal Law § 130.65), defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). It is possible to commit the crime of sodomy

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without the actor having as a purpose the gratification of either party’s sexual desire (see, People v Wheeler, 67 NY2d 960 ). The trial court thus was not required to submit these charges in the alternative, and the jury could properly convict the defendant of both crimes based on the same conduct (CPL 300.40 [3]).

Defendant’s remaining contention has not been preserved for our review.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.

Cases cited

People v. Glover 57 NY2d 61 N.Y. 1982-06-23 p. 869