Opinion
December 26, 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 3, 1978, convicting him of rape in the first degree and sodomy in the first degree, after a nonjury trial, and imposing sentence. Judgment affirmed and case remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). Defendant was indicted for the crimes of rape in the first degree, sodomy in the first degree and sexual abuse in the first degree; he was tried without a jury. At the close of the trial, the Trial Judge found defendant guilty of the rape and sodomy counts, and dismissed the sexual abuse count as a lesser inclusory offense of the rape count. Concededly, the Trial Judge did not, prior to defense counsel's summation, state upon the record the counts upon which he intended to render a verdict (see CPL 320.20, subd 5). However, since defendant was convicted of offenses specified in the indictment, and not of a lesser included offense, the error was harmless beyond a reasonable doubt (see People v. Chapman, 60 A.D.2d 584). We have examined defendant's other contentions and find them to be without merit. Suozzi, J.P., Gulotta, Shapiro and Margett, JJ., concur.