Opinion
January 31, 1992
Appeal from the Erie County Court, D'Amico, J.
Present — Denman, P.J., Callahan, Boomer, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: This is an appeal from a judgment of conviction, following a jury trial, of rape in the first degree (Penal Law § 130.35), two counts of sodomy in the first degree (Penal Law § 130.50), two counts of burglary in the first degree (Penal Law § 140.30, [3]), assault in the second degree (Penal Law § 120.05), and criminal possession of a weapon in the third degree (Penal Law § 265.02). Defendant contends, inter alia, that he was denied a fair trial because the trial court failed to deliver balanced instructions to the jury. Specifically, defendant argues that the trial court improperly instructed the jury: (1) that defendant was an interested witness; (2) that they could consider the previous convictions of defendant and his witnesses in evaluating their credibility; and (3) the trial court marshalled the evidence in an unbalanced and improper manner. Defendant objected only to the interested witness portion of the instructions. Thus, only that issue has been preserved for our review. In any event, there is no merit to defendant's assertions.
In its charge, the trial court noted that the jury could consider whether any witness had a personal or professional interest in the outcome of the case. It is proper for a trial court to charge the jury that defendant is an interested witness (see, People v. Ochs, 3 N.Y.2d 54, 56). While the charge must be reasonably balanced (People v. Bell, 38 N.Y.2d 116, 120), it is for the jury to determine whether a witness is interested in the outcome of a case (People v. Suarez, 125 A.D.2d 350, lv denied 69 N.Y.2d 750). From our review of the court's charge in its entirety, we conclude that the court properly marshalled the evidence necessary to explain the application of the law to the facts and did not deprive defendant of a fair trial.
The evidence was legally sufficient to support defendant's conviction of sodomy in the first degree under count two of the indictment. Penetration is not an essential element of forcible sodomy (see, People v. Froats, 163 A.D.2d 906, lv denied 76 N.Y.2d 940; People v. Reed, 144 A.D.2d 932, lv denied 73 N.Y.2d 925; People v. Griffin, 96 A.D.2d 720). Viewing the evidence, as we must, in the light most favorable to the People (see, People v Ford, 66 N.Y.2d 428, 437), we conclude that the evidence was legally sufficient to establish contact between the defendant's penis and the victim's anus (see, Penal Law § 130.00; § 130.50 [1]).
We have reviewed the other issues raised on appeal including those in defendant's pro se supplemental brief and find that none has any merit. Defendant failed to raise, either before the suppression court or at trial, the issue whether his statements to the police were obtained in violation of his right to counsel on the ground that he was represented by counsel on pending unrelated charges. Thus, that issue has not been preserved for appellate review (see, CPL 470.05; People v. Adams, 57 N.Y.2d 1035, 1037). In any event, defendant's argument is without merit (see, People v. Bing, 76 N.Y.2d 331, 337).