People v. Weston

Judgment unanimously affirmed. Memorandum: The trial court properly refused to charge, sexual abuse in the second degree as a lesser included offense of sodomy in the second degree. Despite the concession by the People to the contrary, sexual abuse is not a lesser included offense of sodomy (see, Matter of Matthew P., 161 AD2d 1195 [decided herewith]). Moreover, here, the victim testified that defendant had anal intercourse with him, whereas defendant, testifying in his own defense, denied any sexual activity whatsoever between him and the victim. Therefore, the jury was faced with a…