Opinion
November 15, 1988
Appeal from the Monroe County Court, Wisner, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment affirmed. All concur, except Doerr, J.P., and Davis, J., who dissent and vote to modify the judgment, in the following memorandum.
We dissent and would reverse the convictions for attempted sodomy. Although penetration of the anus by the penis is not a necessary element of first degree sodomy (People v. Griffin, 96 A.D.2d 720; People v. Griffith, 80 A.D.2d 590), to sustain a conviction for attempted sodomy the prosecution must prove that defendant intended to bring his penis into contact with the victim's anus (see, People v. Robare, 109 A.D.2d 923, 924). In this case, the proof demonstrates that defendant rubbed his penis between the victim's buttocks until ejaculation. His statement, admitted into evidence, confirms that his intent was to perform this act only. His statement was not contradicted by the testimony of the victim or any other evidence adduced at trial. In our view, this proof, although sufficient to support defendant's convictions for sexual abuse in the first degree, is insufficient to sustain the convictions for attempted sodomy, first degree.