PEOPLE v. RAMIREZ (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Appellant, v. Jorge RAMIREZ, Defendant-Respondent.

Decided: December 21, 2001

PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE and GORSKI, JJ.

Stephen K. Lindley, for plaintiff-appellant. Drew R. DuBrin, for defendant-respondent.

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 A.D.2d 906, 906-907, 558 N.Y.S.2d 426, lv. denied 76 N.Y.2d 940, 563 N.Y.S.2d 69, 564 N.E.2d 679). 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 A.D.2d 584, 587-588, 614 N.Y.S.2d 462, lv. denied 84 N.Y.2d 936, 621 N.Y.S.2d 533, 645 N.E.2d 1233).

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:

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