People v. Ford, 69 N.Y.2d 870 (1987)
Sexual abuse in the first degree is not a lesser included offense of first-degree sodomy because it is possible to commit sodomy without the actor necessarily intending to gratify sexual desire, which is an element of sexual abuse.
Summary
The New York Court of Appeals affirmed the Appellate Division’s order, holding that sexual abuse in the first degree is not a lesser included offense of first-degree sodomy. The court reasoned that sodomy can be committed without the specific intent of sexual gratification, an element required for sexual abuse. Therefore, it is possible to commit sodomy without simultaneously committing sexual abuse. The court emphasized that the jury could properly convict the defendant of both crimes based on the same conduct, as the trial court was not required to submit the charges in the alternative.
Facts
The defendant was convicted of both first-degree sodomy and first-degree sexual abuse based on the same conduct. The specific details of the conduct are not provided in the opinion but are assumed to involve acts that could potentially constitute both crimes.
Procedural History
The trial court allowed the jury to convict the defendant of both first-degree sodomy and first-degree sexual abuse. The defendant appealed, arguing that sexual abuse is a lesser included offense of sodomy, and therefore, a conviction on both counts for the same conduct was improper. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals then reviewed the Appellate Division’s order.
Issue(s)
Whether sexual abuse in the first degree is a lesser included offense of first-degree sodomy, such that a defendant cannot be convicted of both crimes based on the same conduct.
Holding
No, because it is possible to commit the crime of sodomy without, by the same conduct, necessarily committing the crime of sexual abuse, as sodomy does not require the element of sexual gratification, which is required for sexual abuse.
Court’s Reasoning
The Court of Appeals based its reasoning on the statutory definitions of sodomy and sexual abuse, referencing Penal Law § 130.65 and § 130.50. The court applied the “impossibility test” derived from CPL 1.20 [37] and People v. Glover, 57 NY2d 61, which dictates that a crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense. The court highlighted that sexual abuse requires “sexual contact,” which is defined in Penal Law § 130.00 [3] as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.” The court reasoned that because sodomy, as established in People v. Wheeler, 67 NY2d 960, can be committed without the actor having the purpose of sexual gratification, it is possible to commit sodomy without also committing sexual abuse. Therefore, the trial court was not required to submit the charges in the alternative, and the jury’s conviction on both counts was proper under CPL 300.40 [3]. The court concluded, “The trial court thus was not required to submit these charges in the alternative, and the jury could properly convict the defendant of both crimes based on the same conduct (CPL 300.40 [3]).” The court’s decision turns on a strict interpretation of the elements of each crime and the requirement that the lesser included offense must be inherently committed when the greater offense is committed.