People v. Reed

Judgment affirmed. All concur, except Doerr, J. P., and Davis, J., who dissent and vote to modify the judgment, in the following memorandum.

(dissenting). We dissent and would reverse the convictions for attempted sodomy. Although penetration of the anus by the penis is not a necessary element of first degree sodomy (People v Griffin, 96 AD2d 720; People v Griffith, 80 AD2d 590), to sustain a conviction for attempted sodomy the prosecution must prove that defendant intended to bring his penis into contact with the victim’s anus (see, People v Robare, 109 AD2d 923, 924). In this case, the proof demonstrates that defendant rubbed his penis between the victim’s buttocks until ejaculation. His statement, admitted into evidence, confirms that his intent was to perform this act only. His statement was not contradicted by the testimony of the victim or any other evidence adduced at trial. In our view, this proof, although sufficient to support defendant’s convictions for sexual abuse in the first degree, is insufficient to sustain the convictions for attempted sodomy, first degree. (Appeal from judgment of Monroe County Court, Wisner, J.— sodomy, first degree; sexual abuse, first degree.) Present— Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.