Opinion
Submitted November 23, 1999
January 27, 2000
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered August 15, 1996, convicting him of kidnapping in the first degree (four counts), rape in the first degree (two counts), kidnapping in the second degree, sexual abuse in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Paul Liu of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Joan Yang of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the conviction of sexual abuse in the first degree under the 11th count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The Supreme Court properly refused to instruct the jury on the affirmative defense of duress. Viewing the evidence adduced at trial in the light most favorable to the defendant, there is no reasonable view of the evidence to support the defendant's claim of duress. The defendant failed to establish that the force or threat of force was capable of "immediate exercise of realization" ( People v. Brown, 68 A.D.2d 503, 513).
The 11th count of the indictment, charging the defendant with sexual abuse in the first degree, must be reversed because no evidence pertaining to that count was adduced at trial.
The sentence imposed was neither harsh nor excessive ( see, People v. Suitte, 90 A.D.2d 80).
O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.