Opinion
May 9, 1966
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 8, 1963 upon resentence, convicting him of attempted rape in the first degree, burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence, except that sentence was suspended as to the conviction for petit larceny. The judgment was previously affirmed by this court, on July 12, 1965 ( 24 A.D.2d 607). However, appellant's subsequent motion for reargument was granted on September 20, 1965 and the appeal has been reargued. Upon reargument, order of this court dated July 12, 1965 vacated; judgment reversed, on the law, as to the conviction for attempted rape in the first degree; the count for that crime is severed from the indictment; and a new trial is ordered on that count. Judgment affirmed as to the other counts. Upon the retrial, the jury should be instructed with respect to the rule of corroboration as it applies to the crime of attempted rape ( People v. Polite, 16 N.Y.2d 1060; People v. English, 16 N.Y.2d 719). Beldock, P.J., Ughetta, Christ, Hill and Hopkins, JJ., concur.