PEOPLE v. McLAURIN (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of sodomy in the first degree (Penal Law former § 130.50[1] ) and sexual abuse in the first degree (§ 130.65[1] ).   Contrary to the contentions of defendant, the evidence is legally sufficient to support the conviction of defendant as either the principal in or an accessory to the commission of sodomy and sexual abuse by forcible compulsion, and the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to defendant's contention, reversal is not required as a result of Supreme Court's refusal to permit defense counsel to make a formal offer of proof pursuant to CPL 60.42, the “rape shield law.”   Defense counsel was afforded the opportunity to set forth his proposed line of questioning of the complainant and the accomplice (see CPL 60.42[5];  People v. Williams, 81 N.Y.2d 303, 314, 598 N.Y.S.2d 167, 614 N.E.2d 730).   The court did not “abuse its discretion in precluding evidence of a sexual encounter between the victim and another man earlier on the night of the crimes at issue (see CPL 60.42;  see also People v. Fields, 279 A.D.2d 405, 405 [720 N.Y.S.2d 63], lv. denied 96 N.Y.2d 828 [729 N.Y.S.2d 448, 754 N.E.2d 208] )” (People v. Grantier, 295 A.D.2d 988, 988, 743 N.Y.S.2d 768, lv. denied 99 N.Y.2d 535, 752 N.Y.S.2d 596, 782 N.E.2d 574;  see generally People v. Mathis, 8 A.D.3d 966, 967, 778 N.Y.S.2d 613, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679;  People v. Mount, 285 A.D.2d 899, 900, 727 N.Y.S.2d 819, lv. denied 97 N.Y.2d 642, 735 N.Y.S.2d 499, 761 N.E.2d 4).

 The court properly denied defendant's request for a missing witness charge with respect to defendant's alleged accomplice, who also was defendant's former codefendant (see People v. Drayton, 24 A.D.3d 686, 808 N.Y.S.2d 383;  People v. Karas, 21 A.D.3d 1360, 801 N.Y.S.2d 217;  People v. Rios, 184 A.D.2d 244, 245, 584 N.Y.S.2d 813, lv. denied 80 N.Y.2d 908, 588 N.Y.S.2d 834, 602 N.E.2d 242).   Moreover, the court did not err in denying defendant's challenge for cause to a prospective juror who ultimately indicated unequivocally that she could follow the law and could be fair and impartial (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Castrechino, 24 A.D.3d 1267, 808 N.Y.S.2d 858;  People v. Madison, 8 A.D.3d 956, 957, 778 N.Y.S.2d 593, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678).

 Finally, defendant contends that his “convictions of the lesser included offense[s] of sexual abuse in the first degree must be reversed,” the sentences imposed thereon vacated, and those counts of the indictment dismissed.   We note that the charges of sexual abuse against defendant were not submitted as lesser included offenses of the sodomy counts and that, in any event, sexual abuse in the first degree is not a lesser included offense of sodomy in the first degree (see People v. Ford, 76 N.Y.2d 868, 560 N.Y.S.2d 981, 561 N.E.2d 881;  cf. People v. Wheeler, 67 N.Y.2d 960, 962, 502 N.Y.S.2d 983, 494 N.E.2d 88).   Rather, counts charging sexual abuse in the first degree and sodomy in the first degree are noninclusory concurrent counts, “and thus both charges and convictions can stand” (People v. Scott, 12 A.D.3d 1144, 1145, 784 N.Y.S.2d 465, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143;  see Ford, 76 N.Y.2d at 870, 560 N.Y.S.2d 981, 561 N.E.2d 881;  People v. Bacchus, 175 A.D.2d 248, 249-250, 572 N.Y.S.2d 368, lv. denied 79 N.Y.2d 824, 580 N.Y.S.2d 204, 588 N.E.2d 102).   To the extent that our prior decisions in People v. Rising, 289 A.D.2d 1069, 735 N.Y.S.2d 680, lv. denied 97 N.Y.2d 732, 740 N.Y.S.2d 706, 767 N.E.2d 163 and People v. Morello, 115 A.D.2d 237, 238-239, 495 N.Y.S.2d 850 lv. denied 67 N.Y.2d 654, 499 N.Y.S.2d 1051, 490 N.E.2d 567 hold otherwise, they are no longer to be followed.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: