PEOPLE v. WILLIAMS (2003)

Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.), rendered November 17, 2000, convicting him of sodomy in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

As the People correctly concede, the trial court improperly denied the defendant's right to fully cross-examine the victim when it prevented questions about a prior inconsistent statement to the effect that she did not believe that the defendant was armed.   However, forcible compulsion does not require a finding that a defendant threatened his victim with a weapon.   Rather, any application of physical force is sufficient to support such a finding (see Penal Law § 130.00[8];  People v. Ferrer, 209 A.D.2d 714, 619 N.Y.S.2d 332;  People v. Thompson, 158 A.D.2d 563, 551 N.Y.S.2d 332;  People v. Randall, 86 A.D.2d 918, 448 N.Y.S.2d 547), as are either verbal or implied threats of physical injury (see Penal Law § 130.00[8];  People v. Williams, 81 N.Y.2d 303, 598 N.Y.S.2d 167, 614 N.E.2d 730;  People v. Samuel, 239 A.D.2d 527, 658 N.Y.S.2d 959;  People v. Miller, 226 A.D.2d 833, 640 N.Y.S.2d 904;  People v. McKenzie, 180 A.D.2d 827, 580 N.Y.S.2d 404;  People v. Smolen, 166 A.D.2d 248, 564 N.Y.S.2d 105).   Since there was evidence that the defendant used physical force against the victim and threatened to break her neck, while in a position to do so, any error in precluding the testimony as to whether the victim believed that the defendant was armed is harmless beyond a reasonable doubt (see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705;  Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171;  People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's remaining contention is unpreserved for appellate review.