Judgment unanimously modified on the law and as modified affirmed, in accordance with memorandum, and matter remitted to Supreme Court, Erie County, for a new trial on that count of the indictment charging rape, first degree.
Memorandum:
Defendant and two codefendants were convicted of burglary, robbery, rape, assault, and larceny. The charges arose from a break-in at the home of an elderly woman. Defendant's conviction of first degree rape must be reversed...
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