Opinion
March 17, 1995
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Pine, J.P., Fallon, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of attempted murder in the second degree, four counts of rape in the first degree, and one count each of sodomy in the first degree and assault in the second degree, defendant contends that reversal of the sodomy conviction is required. He was charged with sodomy in the first degree in both counts six and seven of the indictment and was acquitted of count seven. He contends that the failure of Supreme Court to specify in its jury instructions that oral sodomy was charged in count six and that anal sodomy was charged in count seven resulted in an "incoherent" verdict. We disagree. The complainant testified first concerning oral sodomy and then anal sodomy, and thus her testimony was linked sequentially to the counts. In addition, defense counsel on summation referred to "the second one" as anal intercourse. It is clear that defendant was convicted of oral sodomy (see, People v Drayton, 198 A.D.2d 770; cf., People v. Foreman, 168 A.D.2d 928, lv denied 77 N.Y.2d 994; People v. McNab, 167 A.D.2d 858).
We have reviewed defendant's remaining contentions and conclude that they are without merit.