People v. Rivers , 180 A.D.2d 565 ( 1992 )

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered November 21, 1989, convicting defendant, after jury trial, of sexual abuse in the first degree and robbery in the third degree, and sentencing him to concurrent terms of imprisonment of from 2 to 6 years and 1 to 3 years, respectively, unanimously affirmed.

Uncontroverted evidence at trial was that defendant approached the victim (a college student and a stranger to defendant) at the Penn Station subway station, grabbed her around the neck and waist and pulled her down the stairs. After demanding and receiving a $10 bill, defendant subjected the victim to sexual contact while continuing to hold her around the neck and threatening to kill her if she said anything. Two witnesses to the attack, simultaneously shouted to defendant to leave the victim alone, as she pushed defendant away and ran to the witnesses.

As defendant responded negatively to the trial court’s post-charge inquiry as to whether there were any objections to the jury charge, he waived any claim of error (CPL 300.50). In any event, there is no reasonable view of the evidence that would support a determination that defendant committed the lesser crime of sexual abuse in the third degree, but not the greater crime of sexual abuse in the first degree (see, People v Glover, 57 NY2d 61). Concur—Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.