Opinion
Argued October 8, 1980
Decided December 18, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ARCHIE A. GORFINKEL, J.
Donald E. Gilbert for appellant.
Mario Merola, District Attorney (Vida M. Alvy and Billie Manning of counsel), for respondent.
Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
MEMORANDUM.
The order of the Appellate Division should be affirmed. We agree with the Appellate Division that the Legislature did not act unreasonably when it fixed the age of female consent at 17 years, as opposed to some other, presumably younger, age. However we express no opinion with respect to the other claims of unconstitutionality urged by the defendant and discussed in the Appellate Division opinion, namely, the contention that the statute unconstitutionally discriminates on the basis of sex or that it violates due process by eliminating the mens rea element. Those issues were not properly raised in the trial court and thus are beyond our review.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Judge MEYER concurs in result.
Order affirmed in a memorandum.