SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
*fn**: December 30, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ROBERT F. DAFOE, APPELLANT
Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from a judgment of the County Court of St. Lawrence County rendered March 21, 1967 upon a verdict convicting the defendant of the crimes of assault in the second degree and attempted rape in the first degree. Complainant testified that appellant forced her to accompany him to a darkened area in a park, where he removed portions of her clothing and fondled her. There was no evidence of a completed rape, and the jury found defendant not guilty of an additional charge of sodomy. We find insufficient evidence in this record of the requisite intent to commit a felony to sustain the conviction for assault in the second degree or attempted rape in the first degree. Inasmuch as the proof would sustain a finding of guilt of assault, third degree, we modify the judgment accordingly (Code Crim. Pro., § 543, subd. ). Judgment modified, on the law and the facts, by striking out the provisions convicting appellant of assault, second degree, and attempted rape, first degree, and imposing sentence therefor; and by substituting therefor a provision convicting appellant of the misdemeanor of assault, third degree, and sentencing him to a term of four months in the county jail, with credit for time served.
As so modified, the judgment is affirmed.