Defendant, who was indicted for numerous crimes including forcible rape, was only convicted under a count of the indictment charging third-degree rape pursuant to Penal Law § 130.25 (3). As part of the Sexual Assault Reform Act (L 2000, ch 1), the Legislature established a theory of rape in which the victim's "lack of consent is by reason of some factor other than incapacity to consent." Lack of consent for purposes of this crime occurs where "the victim clearly expressed...
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