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...
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