People v. Ford

76 N.Y.2d 868 (1990)

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

Court of Appeals of the State of New York.

Decided September 11, 1990.

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.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

*869MEMORANDUM.

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 N.Y.2d 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 *870 without the actor having as a purpose the gratification of either party's sexual desire (see, People v Wheeler, 67 N.Y.2d 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.

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.