SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 1, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONALD HOWARD BUTT, APPELLANT
Judgment of the County Court, Suffolk County, rendered March 3, 1967, convicting defendant of assault in the second degree, upon a jury verdict, reversed, on the law, and indictment dismissed.
Christ, Acting P. J., Brennan, Rabin and Martuscello, JJ., concur; Munder, J., dissents and votes to affirm the judgment.
Defendant was indicted for rape in the first degree and assault in the second degree, both crimes arising out of the same facts. The jury acquitted him on the rape charge but found him guilty of assault in the second degree. However, where a criminal assault is committed solely in furtherance of the ultimate goal of rape and the complainant testifies that she was raped, a conviction for the assault cannot stand in the absence of evidence corroborating that testimony (People v. English, 16 N.Y.2d 719; People v. King, 26 A.D.2d 832; People v. Debe, 24 A.D.2d 868; People v. Sigismondi, 49 Misc. 2d 1, affd. 27 A.D.2d 937
, affd. 21 N.Y.2d 186). On the posture of the evidence at bar, the jury's verdict acquitting defendant on the rape charge may well have been based on the lack of corroboration of the complainant's testimony. Accordingly, the judgment convicting defendant of assault in the second degree cannot stand.
The findings of fact are affirmed.
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