Opinion
April 22, 1985
Appeal from the Supreme Court, Queens County (Sherman, J.).
Judgment modified, on the law, by reversing defendant's conviction of one of two separate but identical counts of sodomy in the first degree, i.e., count No. 4, vacating the sentence imposed thereon, and dismissing said count of the indictment. As so modified, judgment affirmed.
During the early morning hours of September 21, 1980, the complainant was raped and sodomized in the bedroom of her home by an intruder whom she recognized to be defendant. Defendant was subsequently indicted by a Queens County Grand Jury and charged with rape in the first degree, sodomy in the first degree (three counts), burglary in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree. Two of the sodomy counts (Nos. 3 and 4 of the indictment) charged defendant with committing the same criminal act. The court ultimately found defendant guilty of rape in the first degree, sodomy in the first degree (all three counts) and criminal possession of a weapon in the fourth degree, but acquitted him of burglary in the first degree and assault in the second degree.
Under the facts of this case, we view the two identical acts of sodomy embodied in counts three and four of the indictment as "part and parcel of * * * continuous conduct" ( People v. Grant, 108 A.D.2d 823). Thus, although defendant does not raise the issue on appeal, we deem it necessary that the judgment be modified by reversing defendant's conviction for one of the two identical counts of sodomy in the first degree, i.e., count No. 4, vacating the sentence imposed thereon, and dismissing that count of the indictment.
We have considered the contentions raised by defendant and find them to be either unpreserved for review or lacking in merit. Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.