PEOPLE v. WEST

Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the evidence is insufficient to sustain the conviction of assault in the third degree ( see, People v. Morales, 245 A.D.2d 467, lv denied 92 N.Y.2d 902; People v. Callender, 232 A.D.2d 650). We also reject the contention that, because defendant was acquitted of sexual abuse in the first degree, he cannot be found guilty of the greater crime of attempted rape in the first degree because they have similar elements. Sexual abuse in the first degree is not a lesser included offense of rape in the first degree because it requires proof of sexual gratification, while rape does not ( see, People v. Daniels, 222 A.D.2d 1065, lv denied 87 N.Y.2d 972). The sentence is neither unduly harsh nor severe.

Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.