People v. West , 683 N.Y.S.2d 449 ( 1998 )

—Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that the evidence is insufficient to sustain the conviction of assault in the third degree (see, People v Morales, 245 AD2d 467, lv denied 92 NY2d 902; People v Callender, 232 AD2d 650). We also reject the contention that, because defendant was acquitted of sexual abuse in the first degree, he cannot be found guilty of the greater crime of attempted rape in the first degree because they have similar elements. Sexual abuse in the first degree is not a lesser included offense of rape in the first degree because it requires proof of sexual gratification, while rape does not (see, People v Daniels, 222 AD2d 1065, lv denied 87 NY2d 972). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Attempted Rape, 1st Degree.) Present — Den-man, P. J., Green, Hayes, Balio and Boehm, JJ.