Opinion
April 19, 1962
Judgment convicting defendant after trial of one count of rape in the first degree, one count of carrying a dangerous weapon after prior conviction, two counts of assault in the second degree and three counts of exposure of person, unanimously modified, on the law and on the facts, to the extent of dismissing counts fourth and twelfth of the indictment, and, as so modified, affirmed. Count fourth alleges exposure of defendant's person on May 14, 1959 and is dismissed on the ground that the People failed to establish the guilt of defendant beyond a reasonable doubt. Count twelfth alleges assault in the second degree on September 3, 1959 and is dismissed on the ground that the infant complaining witness was improperly sworn, and therefore there was insufficient evidence to establish guilt. We have examined the other assignments of error and find them to be without merit. We conclude the sentence should not be modified.
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.