Opinion
December 29, 1978
Motion by the People to reargue an appeal from a judgment of the Supreme Court, Kings County, rendered September 17, 1975, which was reversed by order of this court dated April 24, 1978. Motion denied. On the court's own motion, its decision and order, both dated April 24, 1978 (People v. Harley, 62 A.D.2d 1064), are vacated and recalled, and the following substituted decision is rendered: Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 17, 1975, convicting him of sodomy in the first degree, sodomy in the second degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of sexual abuse in the first degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. As the District Attorney concedes, the sexual abuse count is, on the facts presented on this record, an inclusory concurrent count of sodomy in the first degree, and should be dismissed. As to the sodomy counts, the indictment is legally sufficient (see People v. Jackson, 46 N.Y.2d 171; People v. Iannone, 45 N.Y.2d 589). The other errors complained of do not warrant reversal. Martuscello, J.P., Titone, Suozzi and Cohalan, JJ., concur.