AD 4: Sexual Abuse in the First Degree not inclusory concurrent count of Sodomy in the First Degree

People v McLaurin, __ AD3d __ [available here]

In a bit of housekeeping, the Fourth Department holds in People v McLaurin that "sexual abuse in the first degree is not a lesser included offense of sodomy in the first degree . . . [r]ather, counts charging sexual abuse in the first degree and sodomy in the first degree are noninclusory concurrent counts 'and thus both charges and convictions can stand'." (People v McLaurin, __ AD3d at __.) The Court is not breaking any new ground here--the Court of Appeals confronted this issue over 15 years ago, and held in People v Ford that, since sexual abuse requires a showing of sexual contact for the purposes of sexual gratification, and it "is possible to commit the crime of sodomy without the actor having as a purpose the gratification of either party's sexual desire", the jury "could properly convict the defendant of both crimes based on the same conduct." (People v Ford, 76 NY2d 868, 870 [1990].)

So far, nothing notable--just the Fourth Department following clear Court of Appeals precedent. What makes this case interesting is the fact that as recently as 2001, and in spite of the clear Court of Appeals precedent in Ford, the Fourth Department dismissed a count of sexual abuse in the first degree as a lesser included offense of sodomy in the first degree because "[t]here was no evidence of separate acts of sexual abuse independent of the acts of sodomy." (People v Rising, 289 AD2d 1069, 1070 [4th Dept 2001].) Thus the Court in McLaurin had to clarify that, "[t]o the extent that our prior decisions in People v Rising and People v Morello hold otherwise, they are no longer to be followed. (McLaurin, __ AD3d at __.)