Opinion
December 21, 1965
Judgment appealed from unanimously reversed on the law and a new trial ordered. Defendant was convicted of the crimes of assault in the second degree, and assault in the third degree. He appeals from the entire judgment. The conviction of assault in the second degree with intent to commit rape cannot stand for there was evidence of a completed rape and the necessary corroboration is lacking ( People v. English, 16 N.Y.2d 719; People v. Lo Verde, 7 N.Y.2d 114). We cannot say upon this record that the conviction of simple assault did merge as appellant contends, or did not merge, as the People contend, with the count charging assault with intent to commit rape. A conviction for simple assault is not necessarily precluded by the evidence but in fairness to defendant that conviction also appealed from should be reversed and a new trial granted. Appellant's contention that it was reversible error to deny his motion for a mistrial because of an incident which occurred on the first day of the trial must also be considered. In light of the foregoing, and on the whole record, a new trial is directed.
Concur — Rabin, J.P., Valente, Stevens, Steuer and Staley, JJ.