People v. Garrett , 2023 NY Slip Op 01754 ( 2023 )

People v Garrett (2023 NY Slip Op 01754)

People v Garrett

2023 NY Slip Op 01754

Decided on March 30, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 30, 2023
Before: Manzanet-Daniels, J.P., Kapnick, Webber, Friedman, Rodriguez, JJ.

Ind. No. 960/17 Appeal No. 17620 Case No. 2019-2102

[*1]The People of the State of New York, Respondent,

v

Markese Garrett, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Charles Hickerson of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Alvin Yearwood, J.), rendered December 20, 2018, as amended January 14, 2019, convicting defendant, after a nonjury trial, of rape in the second and third degrees, luring a child, sexual misconduct, endangering the welfare of a child, criminal contempt in the second degree and sexual abuse in the third degree, and sentencing him, as a second child sexual assault felony offender, to an aggregate term of 13½ years, unanimously affirmed.

Defendant is not entitled to dismissal of the third-degree rape conviction as an inclusory concurrent count (CPL 300.30[4]) of the second-degree rape conviction. Concurrent counts are "inclusory" when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater (CPL 300.30[4]; see People v Glover, 57 NY2d 61, 64 [1982]). The elements of third-degree rape are sexual intercourse between a person age 21 or more with a person under 17 (Penal Law § 130.25[2]). The elements of second-degree rape are sexual intercourse between a person age 18 or more with a person under 15 (Penal Law § 130.30[1]). As such, depending on the relationship between the ages of the offender and victim, it is possible to commit second-degree rape under Penal Law § 130.30(1) without also committing third-degree rape under Penal Law § 130.25(2).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 30, 2023