PEOPLE v. KERRUISH (2001)

 Defendant appeals from a judgment convicting him after a jury trial of two counts each of rape in the third degree (Penal Law § 130.25[2] ) and sodomy in the third degree (Penal Law § 130.40[2] ), and one count each of attempted rape in the third degree (Penal Law §§ 110.00, 130.25[2] ), sodomy in the first degree (Penal Law § 130.50[1] ), and sexual abuse in the third degree (Penal Law § 130.55).   Defendant contends that the conviction of sodomy in the first degree is not supported by legally sufficient evidence because the People failed to establish the element of forcible compulsion and that the verdict convicting him of that crime is against the weight of the evidence.   We disagree.   The victim's testimony was legally sufficient to establish the element of forcible compulsion (see, People v. Page, 166 A.D.2d 886, 560 N.Y.S.2d 546, lv. denied 77 N.Y.2d 842, 567 N.Y.S.2d 210, 568 N.E.2d 659), and the verdict convicting defendant of sodomy in the first degree is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further reject defendant's contention that the victim was impermissibly permitted to testify regarding her belief that defendant had previously beaten his wife.   The statement was relevant to the victim's state of mind with respect to the element of forcible compulsion (see, People v. Mattys, 251 A.D.2d 1056, 1057, 674 N.Y.S.2d 539, lv. denied 92 N.Y.2d 901, 680 N.Y.S.2d 65, 702 N.E.2d 850), and “its probative worth on the issue of forcible compulsion outweighed its tendency to demonstrate defendant's criminal propensity” (People v. Kirkey, 248 A.D.2d 979, 980, 670 N.Y.S.2d 946, lv. denied 92 N.Y.2d 900, 680 N.Y.S.2d 64, 702 N.E.2d 849).

 Defendant further contends that he was denied a fair trial when his requests for substitution of counsel and an adjournment were denied.   We reject that contention.   Defendant failed to show good cause for substitution of counsel (see, People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and County Court properly exercised its discretion in denying defendant's request for an adjournment (see, People v. McNear, 265 A.D.2d 810, 810-811, 696 N.Y.S.2d 611, lv. denied 94 N.Y.2d 864, 704 N.Y.S.2d 540, 725 N.E.2d 1102;  cf., People v. Spears, 64 N.Y.2d 698, 699-700, 485 N.Y.S.2d 521, 474 N.E.2d 1189).   The sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: