Opinion
November 15, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered November 17, 1995, convicting him of burglary in the first degree (three counts), assault in the second degree, assault in the third degree (two counts), and menacing in the second degree (three counts), upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Cynthia Colt of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Shulamit Rosenblum, and Phyllis Mintz of counsel), for respondent.
FRED T. SANTUCCI, J.P., THOMAS R. SULLIVAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review ( see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
The defendant also contends that evidence of his prior sexual and physical abuse of one of the complainants was improperly introduced into evidence. In addition to the charges of burglary, assault, and menacing, the defendant was charged with sodomy in the first degree. Although he was acquitted of this charge, the challenged evidence was admissible, because it was probative of the victim's state of mind and relevant to prove that the defendant used "forcible compulsion", a necessary element of the crime of sodomy in the first degree pursuant to Penal Law § 130.50(1). The probative value of the evidence outweighed any prejudice to the defendant ( see, People v. Cook, 93 N.Y.2d 840; People v. McClain, 250 A.D.2d 871; People v. Kirkey, 248 A.D.2d 979; People v. George, 197 A.D.2d 588).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
SANTUCCI, J.P., SULLIVAN, FLORIO, and SCHMIDT, JJ., concur.