| People v Ogborn |
| 2008 NY Slip Op 08035 [55 AD3d 1054] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph T. Ogborn,Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.), renderedFebruary 26, 2007, upon a verdict convicting defendant of two counts of the crime of sodomy in thefirst degree.
Defendant was convicted after a jury trial of two counts of sodomy in the first degree[FN*]for having engaged in deviate sexual conduct in 1997 with two victims under the age of 11. Defendantwas sentenced to a prison term of 15 years on each count, to run consecutively, and five years ofpostrelease supervision. Defendant's motions to set aside the jury verdict and to vacate the sentencewere both denied. However, in May 2007, County Court vacated the original sentence—due tothe fact that such sentence was not authorized by law in 1997—and resentenced defendant totwo consecutive prison terms of 8¾ to 17½ years. Defendant now appeals.[*2]
Initially, we note that defendant failed to preserve any argumentwith regard to the legal sufficiency of the evidence as to count one by failing to make a trial motion todismiss with respect thereto (see People vGathers, 47 AD3d 959, 959 [2008], lv denied 10 NY3d 863 [2008]). Moreover,we reject defendant's assertion that the trial evidence was legally insufficient to establish sodomy in thefirst degree as to count two. A person is guilty of sodomy in the first degree, as defined in 1997, when"he [or she] engages in deviate sexual intercourse with another person . . . [w]ho is lessthan eleven years old" (Penal Law former § 130.50 [3]). " 'Deviate sexual intercourse' meanssexual conduct between persons not married to each other consisting of contact between the penis andthe anus, the mouth and penis, or the mouth and the vulva" (Penal Law former § 130.00 [2]).
Here, the victim of count two testified that, in May 1997—when she was four yearsold—defendant (then in his 20s) penetrated her anus with his penis. Both victims testifiedconsistently with regard to the circumstances surrounding the charges. Contrary to defendant'sassertion, we do not find the victim's testimony to be unworthy of belief as a matter of law (seePeople v Smith, 272 AD2d 713, 715-716 [2000], lv denied 95 NY2d 871 [2000]). Inaddition, the physician who examined the victim in 2006 testified that she had anal scarring that was atleast one year old at the time of examination. Viewing the evidence in the light most favorable to thePeople, we conclude that there is a valid line of reasoning which could lead a rational trier of fact to findthat defendant was guilty of sodomy in the first degree beyond a reasonable doubt (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Contes, 60 NY2d 620, 621 [1983]; People v Brown, 46 AD3d 949, 951[2007], lv denied 10 NY3d 808 [2008]).
We also disagree with defendant's contention that County Court erred in denying his motion tocharge the jury with sexual abuse in the first degree as a lesser included offense of sodomy in the firstdegree. "To qualify as a lesser included offense, it must first be determined on an abstract comparativeexamination of the statutes defining the two crimes that it is theoretically impossible to commit thegreater crime without concomitantly committing the lesser" (People v Saddlemire, 121 AD2d791, 793 [1986], lv denied 68 NY2d 917 [1986] [citation omitted]). It is well settled that"sexual abuse in any degree does not qualify as a lesser included offense of sodomy in the first degreesince all degrees of sexual abuse require as an element that the sexual contact be for the purpose ofgratifying the sexual desire of either party . . . , whereas sodomy in the first degree doesnot" (id.; see Penal Law former § 130.00 [3]; People v Holman, 249AD2d 947, 947-948 [1998], lv denied 92 NY2d 899 [1998]; People v Cirina, 143AD2d 763, 763-764 [1988], lv denied 73 NY2d 854 [1988]). Thus, County Court properlydenied defendant's motion.
Defendant next challenges the sentence imposed. To the extent that defendant appeals from theinitial judgment of conviction, the issue is moot as County Court later resentenced him to indeterminateterms in accord with the law at the time he committed the crimes. We further note that, inasmuch asdefendant did not appeal his resentencing, issues surrounding the resentencing are not properly beforeus (see People v Kuras, 49 AD3d1196, 1197 [2008], lv denied 10 NY3d 866 [2008]). In any event, although defendantcorrectly argues that the aggregate term of the two indeterminate terms was not authorized, it is the dutyof the Department of Correctional Services to administratively recalculate the sentence to the legallypermitted limit of 15 to 30 years and no modification is required by this Court (see Penal Law§ 70.30 [1] [e] [i]; People v Moore, 61 NY2d 575, 578 [1984]; People vSheppard, 273 AD2d 498, 500 [2000], lv denied 95 NY2d 908 [2000]; People vBrown, 255 AD2d 686, 688 [1998], lv denied 92 NY2d 1029 [1998]). To the extentthat defendant is arguing that the Department has [*3]not made therecalculation, his remedy is to commence a CPLR article 78 proceeding (see e.g. Matter ofPatterson v Goord, 299 AD2d 769 [2002]).
Mercure, J.P., Peters, Spain and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Penal Law § 130.50 wasamended in 2003 and "sodomy" in the first degree is now known as "criminal sexual act" in the firstdegree (see Penal Law § 130.50, as amended by L 2003, ch 264, § 20).Furthermore, the term "deviate sexual intercourse" is now referred to as "oral sexual conduct" or "analsexual conduct" (see Penal Law § 130.00, as amended by L 2003, ch 264, §12).