330 N.Y.S.2d 65, 280 N.E.2d 891
Court of Appeals of the State of New York.Argued January 11, 1972
Decided February 10, 1972
Appeal from the Appellate Division of the Supreme
Page 520
Court in the First Judicial Department, JOSEPH A. MARTINIS, J.
Page 521
Lewis B. Oliver, Jr., Robert Kasanof and Barbara A. Shapiro
for appellant.
Frank S. Hogan, District Attorney (Bennett L. Gershman an Michael R. Juviler of counsel), for respondent.
Order modified by reversing the conviction of sexual misconduct, vacating the sentence imposed thereon and dismissing that count of the indictment, and, as so modified, affirmed. The defendant’s acquittal of the charge of rape in the first degree, upon the trial court’s finding that there was insufficient proof of forcible compulsion (Penal Law, § 130.35, subd. 1), precluded a conviction of sexual misconduct by forcible compulsion upon the same evidence (Penal Law, § 130.20, subd. 1; § 130.05, subd. 2, par. [a]).
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.