People v. Hill ( 1998 )

Appeal by the defendant from an amended judgment of the County Court, Nassau County (Kowtna, J.), rendered September 19,1995, convicting him of rape in the first degree and sodomy in the first degree, upon a jury verdict, and sentencing him to an indeterminate term of 3 to 10 years imprisonment on the conviction of rape in the first degree, and 3 to 10 years imprisonment on the conviction of sodomy in the first degree, to run consecutively to each other.

Ordered that the amended judgment is modified, on the law, by vacating the sentence imposed; as so modified, the amended judgment is affirmed and the matter is remitted to the County Court, Nassau County, for resentencing.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

Further, as no reasonable view of the evidence would have supported a conviction of attempted rape, but not rape, the trial court properly refused to charge attempted rape as a lesser-included offense (see, People v Glover, 57 NY2d 61).

The People correctly concede that the sentence imposed on the defendant’s convictions of the crimes of rape in the first degree and sodomy in the first degree, consisting of consecutive indeterminate terms of 3 to 10 years, was illegal (see, Penal Law § 70.05 [3] [c]). Accordingly, we vacate the sentence and remit the matter for resentencing.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Copertino, Thompson and Friedmann, JJ., concur.