Opinion
May 4, 1971
Judgment, Supreme Court, New York County, rendered December 4, 1969, convicting defendant, after trial before the court without a jury, of the crimes of assault in the third degree, sexual misconduct and sexual abuse in the third degree, and imposing concurrent sentences of six months, six months and three months, respectively, unanimously modified, on the law, to the extent of vacating the conviction for assault in the third degree, and as so modified, affirmed. The indictment charged, among other crimes, assault in the second degree committed in the course of and in the furtherance of the commission of a felony, to wit, rape. Under subdivision 6 of section 120.05 Penal of the Penal Law, there was excluded from the purview of the category of assaults committed in furtherance of the commission of a felony, assaults committed during the commission of sexual offenses defined in article 130 of the Penal Law. Since rape is a felony defined under article 130, the indictment improperly charged defendant with the crime of assault in the second degree and the court could not find defendant guilty of that crime nor any lesser included crime such as assault in the third degree. We have considered the other assignments of error and find them without merit.
Concur — Stevens, P.J., Capozzoli, Nunez, Kupferman and Steuer, JJ.