Opinion
1999-05872
Argued February 25, 2003.
March 17, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered June 7, 1999, convicting him of rape in the first degree (five counts), sodomy in the first degree (five counts), sexual abuse in the first degree (three counts), criminal contempt in the first degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
Barry Gene Rhodes, Brooklyn, N.Y. (Ronald J. Aiello of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and James A. Dolan of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the convictions of sexual abuse in the first degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the Supreme Court erroneously permitted the introduction of evidence of the complainant's out-of-court statements that he raped and sodomized her is without merit. This testimony was properly admitted under the prompt outcry exception to the hearsay rule (see People v. McDaniel, 81 N.Y.2d 10; People v. Gonzalez, 131 A.D.2d 873, 874).
As the People correctly concede, the defendant's convictions of sexual abuse in the first degree must be vacated and those counts of the indictment dismissed because that crime is an inclusory concurrent count of rape in the first degree and sodomy in the first degree (see CPL 300.40[b]; People v. Timothy, 96 A.D.2d 875, 876).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
SANTUCCI, J.P., SMITH, LUCIANO and COZIER, JJ., concur.