259 A.D. 892 | N.Y. App. Div. | 1940
Appeal from a judgment of the County Court of Kings County convicting the defendant of attempted rape in the first degree and assault in the second degree with intent to commit rape and sentencing him to five to ten years on the first charge and two and one-half to five years on the second charge, the sentences to run concurrently. Judgment reversed on the law and the facts and a new trial ordered. The two crimes of which the defendant has been found guilty are identical under the facts in this record. Therefore, there was no need to submit to the jury the charge of attempted rape in the first degree under the count which charged rape in the first degree. It was sufficient to have submitted the charge of assault in the second degree with intent to commit rape which was set out in the indictment. The judgment of conviction is against the weight of the credible evidence. Lazansky, P. J., Carswell and Johnston, JJ., concur; Adel and Close, JJ., dissent and vote to affirm the judgment of conviction in so far as the defendant was found guilty of assault in the second degree with intent to commit rape.
