People v. Toledo

Judgment unanimously affirmed. Memorandum: The trial court properly rejected defendant’s request to charge sexual misconduct as a lesser included offense of rape in the first degree and sodomy in the first degree (see, People v Blackwell, 177 AD2d 952 [decided herewith]).

We have examined defendant’s other contention and find it to be without merit. (Appeal from Judgment of Niagara County Court, DiFlorio, J.—Rape, 1st Degree.) Present—Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.