Opinion
July 8, 1953.
Present — McCurn, Vaughan, Kimball, Piper and Wheeler, JJ.
Judgment of conviction and order reversed on the law and indictment dismissed. Memorandum: The defendant was indicted for the crime of rape in the first degree, pursuant to section 2010 of the Penal Law. He was convicted of and sentenced for the crime of rape in the second degree although not charged with such crime in the indictment. This court has held that the crime of rape in the first degree and the crime of rape in the second degree "are substantively and generically separate and distinct" and that "neither section 444 nor section 445 of the Code of Criminal Procedure authorized the court under this indictment to submit to the jury the question of defendant's guilt of the crime of rape in the second degree." (See People v. Burch, 281 App. Div. 348, 350-351.) All concur. (Appeal from a judgment convicting defendant of the crime of rape, second degree. The order denies a motion for a new trial.)