*969—Judgment unanimously affirmed. Same Memorandum as in People v Gugino ([appeal No. 1] 229 AD2d 968 [decided herewith]). (Appeal from Judgment of Erie County Court, D’Amico, J.—Rape, 3rd Degree.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.