The defendant is charged with rape in the first degree in violation of section 130.35 of the Penal Law. He now moves to dismiss the charge after a preliminary hearing. The issue posed is: Can an admitted prostitute be raped when she has sexual intercourse with a client who, instead of paying the agreed upon fee, draws a pistol and obtains the quid pro quo? The court has not been able to find any prior case that has ruled on this issue...
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