Opinion
October 28, 1963
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 18, 1963 after a jury trial, convicting him of attempted rape in the first degree, assault in the second degree (two counts), burglary in the first degree and carrying a dangerous weapon as a misdemeanor, and imposing sentence. Judgment reversed on the law and the facts and a new trial ordered. In our opinion, the indictment and conviction for attempted rape in the first degree were not invalid as a matter of law merely because the uncorroborated testimony of the complainant indicated that the rape had been consummated ( People v. Wasserbach, 271 App. Div. 756). However, we are also of the opinion, and the District Attorney concedes, that the court's refusal to permit proof of a prior inconsistent statement by the complainant requires a new trial. The excluded proof cast some doubt on complainant's positive identification of defendant and, in view of the closeness of the testimony on that question, the error was prejudicial and requires reversal of the judgment of conviction. Beldock, P.J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.