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PEOPLE v. CIPOLLA

6 N.Y.2d 922 (1959)

The People of the State of New York, Appellant, v. Henry Cipolla, Respondent.

Court of Appeals of the State of New York.

Decided July 8, 1959.

Attorney(s) appearing for the Case

Julian Hanley, District Attorney, for appellant.

Hayden H. Dadd for respondent.

Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.

Per Curiam.

The Trial Judge charged the jury that on the second count in the indictment (sodomy in the first degree) it could convict the defendant of sodomy in the second degree. No exception was taken to that instruction. The jury convicted the defendant of sodomy in the second degree. On appeal, the Appellate Division held that the crime of sodomy in the second degree is not included within the crime of sodomy in...

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