Opinion
April 3, 1978
Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 13, 1975, convicting him of sodomy in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of sodomy in the first degree and the sentence imposed thereon, with leave to the People to resubmit the sodomy charge to another Grand Jury. As so modified, judgment affirmed. The count of the indictment charging defendant with sodomy in the first degree states: "The defendant, in the City of Mount Vernon, County of Westchester and State of New York, on or about January 6, 1975, engaged in deviate sexual intercourse with * * * by forcible compulsion." The indictment's language is a mere repetition of the words of the statute. This court has previously held that the count of an indictment which charges the crime of sodomy in the first degree by simply using the words of the statute is legally insufficient because it fails to state the exact nature of the deviate sexual intercourse with which defendant is charged (People v Jackson, 60 A.D.2d 893). Accordingly, the sodomy conviction must be reversed. Mollen, P.J., and Suozzi, J., concur; Cohalan and Hawkins, JJ., concur in the result on the constraint of the decision in People v Jackson ( 60 A.D.2d 893).