Opinion
February 27, 1987
Appeal from the Oneida County Court, Buckley, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conduct in rubbing his covered penis against the covered buttocks of two males, 11 and 13 years old, constituted sexual contact as defined by Penal Law § 130.00 (3) (see, People v. Darryl M., 123 Misc.2d 723; Matter of David M., 93 Misc.2d 545). Defendant's reliance upon People v. Vicaretti ( 54 A.D.2d 236, 247-249) is misplaced. In Vicaretti, this court held that sexual abuse is not a lesser included offense of rape and that sexual intercourse by itself did not constitute the sexual contact required for a sexual abuse conviction (accord, People v. Brown, 115 A.D.2d 550, lv denied 67 N.Y.2d 881). There was no other contact in Vicaretti aside from the intercourse, and a proper reading of that case must be limited to that holding. Although dictum in Vicaretti suggested that Penal Law § 130.00 (3) should be strictly construed to limit "touching" to digital manipulation and manual handling and fondling, that motion was clearly dispelled in People v. Teicher ( 52 N.Y.2d 638) and People v. Ditta ( 52 N.Y.2d 657) and has not been followed by this court where contact other than intercourse was involved (see, People v. Lewis, 112 A.D.2d 702, lv denied 66 N.Y.2d 920, on reconsideration lv denied 68 N.Y.2d 669).
The trial court did not err by instructing the jury that sexual contact could occur through clothing. Although section 130.00 (3) of the Penal Law was amended to so provide after this crime occurred, the amendment merely codified existing case law and did not change the definition of sexual contact (People v. Scott, 124 A.D.2d 974, lv denied 69 N.Y.2d 717).
We find that imposition of consecutive terms of 1 to 3 and 2 to 6 years on the sexual abuse in the first degree counts was not an abuse of discretion and that the sentence was not unduly harsh or excessive. Defendant's remaining claim was not preserved for our review (CPL 470.05) and does not warrant reversal.