Opinion
May 31, 1996
Appeal from the Erie County Court, McCarthy, J.
Present — Denman, P.J., Pine, Fallon, Wesley and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was charged with two counts of rape in the first degree (Penal Law § 130.35) and two counts of sodomy in the first degree (Penal Law § 130.50). He was found guilty, following a bench trial, of two counts of attempted rape in the first degree and two counts of attempted sodomy in the first degree. He contends that County Court erred in admitting a videotape and in considering the lesser included offenses of attempted rape and attempted sodomy. Those issues are not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to address them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). In any event, any error regarding the admission of the videotape is harmless ( see, People v. Crimmins, 36 N.Y.2d 230, 241-242), and the proof adduced at trial supports a finding of attempt even though there is some evidence of consummation ( see, People v. Shreve, 167 A.D.2d 698; People v. Mendez, 158 A.D.2d 326, lv denied 76 N.Y.2d 792). Finally, there is no merit to defendant's contention that the verdict is against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).