Opinion
July 11, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 8, 1974, convicting him of attempted sexual abuse in the first degree (two counts), attempted sexual misconduct and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of attempted sexual misconduct, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Defendant-appellant contends that the jury reached a repugnant verdict when it convicted him of attempted sexual misconduct although it acquitted him of attempted sodomy in the first degree. We hold that defendant's contention has merit. The elements of the two crimes as charged in the first and third counts of the indictment are identical and, therefore, the verdict is repugnant (cf. People v Williams, 47 A.D.2d 262). The attempted sexual misconduct conviction cannot be sustained on the ground that it is a lesser included offense of attempted sodomy in the first degree, since the jury was not charged alternatively. We have examined defendant's other contentions and find them to be without merit. Cohalan, J.P., Damiani, Hawkins and Mollen, JJ., concur.