Opinion
July 20, 1970
On remand from the Court of Appeals ( People v. Butt, 25 N.Y.2d 995), judgment of the County Court, Suffolk County, rendered March 3, 1967, convicting defendant of assault in the second degree, upon a jury verdict, reversed, on the law, and indictment dismissed, for the reasons stated in our decision when the case was previously before this court ( People v. Butt, 30 A.D.2d 814) and in the discussion which follows. The findings of fact are affirmed. Pursuant to the remand we have considered whether to reduce the judgment of conviction to assault in the third degree (under former Penal Law, § 244, subd. 1) and have concluded that upon the record herein such reduction would not be proper. Althougth the assault count of the indictment merely charged the crime of assault with intent to commit a felony, the trial court's charge thereon, to which no exception was taken, was that defendant was being charged with assault with intent to commit rape. Such was the theory upon which the case was tried. The victim testified that defendant had hit her repeatedly, both before he raped her, when she repulsed his advances, and afterwards, when she tried to get away. Police officers testified that soon after he was taken into custody he told them that, after engaging in sexual intercourse with him willingly, she became hysterical when she noticed his wedding band and he hit her several times to quiet her down. Since the complainant testified that she had been raped, the testimony of a preliminary assault in aid thereof cannot support a conviction for assault in the absence of corroboration ( People v. Radunovic, 21 N.Y.2d 186; People v. English, 16 N.Y.2d 719; and kindered cases cited in our said first decision herein). The assault after the rape cannot be the predicate for a conviction inasmuch as it was not within the scope of the crimes charged. Christ, P.J., Rabin, Munder, Martuscello and Brennan, JJ., concur.