It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35 [1]) and rape in the third degree (§ 130.25 [3]). Although defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence, "`we...
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