
    The People of the State of New York, Respondent, v Demetrius Whitaker, Appellant.
    [753 NYS2d 795]
   Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered July 17, 2000, convicting defendant after a jury trial of, inter alia, rape in the first degree.

It is hereby ordered that the judgment so appealed from he and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law former § 130.35 [3]) and other crimes arising from the alleged sexual assault of a 10-year-old girl. Defendant’s contention concerning the admissibility of testimony by the People’s medical expert on the subject of “legal penetration” is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). We reject defendant’s contention that the alleged error arising from the admission of that testimony need not be preserved (cf. People v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647). We conclude that the verdict finding defendant guilty of rape in the first degree is not against the weight of the evidence and that there is legally sufficient evidence of the victim’s age (see People v Bleakley, 69 NY2d 490, 495). We also conclude that the sentence is not unduly harsh or severe. Defendant’s further contention raised in the pro se supplemental brief concerning the legal sufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30 [6]; People v Augustine, 235 AD2d 915, 917, appeal dismissed 89 NY2d 1072, lv denied 89 NY2d 1088).

The remaining contentions raised by defendant in the pro se supplemental brief are without merit. We note in particular that, contrary to defendant’s contention, “[s]exual abuse in the first degree is not a lesser included offense of rape in the first degree” (People v West, 256 AD2d 1159, 1159, lv denied 93 NY2d 880). Present — Green, J.P., Wisner, Scudder, Burns and Hayes, JJ.  