Opinion
2000-11575
Submitted January 9, 2003.
February 4, 2003.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.), rendered November 17, 2000, convicting him of sodomy in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
Robert J. Rountry, Freeport, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Tammy J. Smiley and John F. McGlynn of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is affirmed.
As the People correctly concede, the trial court improperly denied the defendant's right to fully cross-examine the victim when it prevented questions about a prior inconsistent statement to the effect that she did not believe that the defendant was armed. However, forcible compulsion does not require a finding that a defendant threatened his victim with a weapon. Rather, any application of physical force is sufficient to support such a finding (see Penal Law § 130.00; People v. Ferrer, 209 A.D.2d 714; People v. Thompson, 158 A.D.2d 563; People v. Randall, 86 A.D.2d 918), as are either verbal or implied threats of physical injury (see Penal Law § 130.00; People v. Williams, 81 N.Y.2d 303; People v. Samuel, 239 A.D.2d 527; People v. Miller, 226 A.D.2d 833; People v. McKenzie, 180 A.D.2d 827; People v. Smolen, 166 A.D.2d 248). Since there was evidence that the defendant used physical force against the victim and threatened to break her neck, while in a position to do so, any error in precluding the testimony as to whether the victim believed that the defendant was armed is harmless beyond a reasonable doubt (see Chapman v. California, 386 U.S. 18; Fahy v. Connecticut, 375 U.S. 85; People v. Crimmins, 36 N.Y.2d 230).
The defendant's remaining contention is unpreserved for appellate review.
ALTMAN, J.P., SMITH, McGINITY and TOWNES, JJ., concur.