PEOPLE v. SMITHERS (1998)

 Defendant failed to preserve for our review his present contention that the two acts of sodomy that allegedly occurred on January 29, 1995, were part of a continuous course of conduct and should have been charged as a single offense.   In any event, that contention lacks merit.   According to the victim, there were two separate and distinct acts of deviate sexual intercourse (see, Penal Law § 130.00[2] ).  Thus, the evidence does not support defendant's contention that the first act of sodomy was “part and parcel of the continuous conduct culminating” in the second act of sodomy (People v. Grant, 108 A.D.2d 823, 485 N.Y.S.2d 299).   Because defendant engaged in two separate and distinct acts of sodomy, and neither completed offense was a material element of the other offense, County Court properly imposed consecutive sentences (see, People v. Guthrie, 222 A.D.2d 1084, 1085, 636 N.Y.S.2d 239, lv. denied 87 N.Y.2d 973, 642 N.Y.S.2d 203, 664 N.E.2d 1266;  People v. Curtis, 195 A.D.2d 968, 969, 601 N.Y.S.2d 39, lv. denied 82 N.Y.2d 752, 603 N.Y.S.2d 994, 624 N.E.2d 180).

 We reject the further contention of defendant that the conviction of sexual abuse in the first degree is not supported by legally sufficient evidence because the People failed to establish that he committed the act for the purpose of sexual gratification.   That element may be inferred from his conduct (see, People v. Beecher, 225 A.D.2d 943, 944-945, 639 N.Y.S.2d 863).

Judgment unanimously affirmed.

MEMORANDUM: