Opinion
March 13, 1939.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ.
Appeal from by defendant from a judgment of conviction of the crimes of attempted rape in the first degree and assault in the second degree. Judgment of conviction of the County Court of Richmond county unanimously affirmed. The sentence for assault in the second degree is reversed on the law and annulled. The sentence for attempted rape in the first degree is approved and affirmed. Although both counts charged the same crime, the district attorney was not required to elect upon which he would proceed, and denial of a motion to compel him to do so was not erroneous. (Code Crim. Proc. §§ 279, 279-a; People v. Sullivan, 173 N.Y. 122, 128; People v. Garner, 64 App. Div. 410; People v. Adams, 72 id. 166.) The defendant, however, could be sentenced on but one of the counts. (Penal Law, § 1938; People v. Edwards, 173 App. Div. 375; People ex rel. Thornwell v. Heacox, 231 id. 617.) Under such circumstances, this court is empowered to annul a sentence or sentences imposed on more than one count. (Code Crim. Proc. § 543; People v. Wells and Paipineau, 246 App. Div. 853.)