Opinion
March 6, 1984
Appeal from the Supreme Court, Erie County, McGowan, J.
Present — Doerr, J.P., Boomer, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: The defendant appeals from a judgment of conviction of rape in the first degree and sodomy in the first degree committed against his wife. At the time of rape and sodomy, the defendant and wife were living apart after a "Temporary Order of Protection" had been granted by Family Court. This court has previously determined that the wife falls under the category of "female" in the statute defining sex offenses (Penal Law, § 130.00, subd 4, as amd L 1978, ch 735; People v Liberta, 90 A.D.2d 681). Although the statute is gender based, the lower courts in this State have consistently held that the statute withstands the constitutional challenge ( People v Smith, 97 Misc.2d 115; People v Fauntleroy, 94 Misc.2d 606, revd on other grounds 74 A.D.2d 612; People v Reilly, 85 Misc.2d 702). "`To withstand scrutiny' under the Equal Protection Clause, `"classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"'" ( Orr v Orr, 440 U.S. 268, 279, citing Craig v Boren, 429 U.S. 190, 197). The classification is rationally related to a legitimate State objective (see People v Whidden, 51 N.Y.2d 457). Nor is the statute unconstitutional by reason of the marital classification, as long as there is a rational basis for different treatment accorded married and unmarried persons ( Eisenstadt v Baird, 405 U.S. 438). We have examined the other arguments of the defendant and find them without merit.