Appeal from an order dismissing a writ of habeas corpus. Appellant was convicted *1047under one indictment of the crime of attempted rape, second degree, of assault, second degree, and endangering the life and health of a child. Upon the conviction for attempted rape he was given an indeterminate sentence of from two and a half to five years. On the other charges sentence was suspended. Appellant claims he should have been prosecuted for the carnal abuse of a child, under section 483-b of the Penal Law, which is only a misdemeanor unless the person charged has been previously convicted of a similar crime. Apparently appellant might have been prosecuted' either for attempted rape, second degree, or for the carnal abuse of a child. (Penal Law, § 1938.) The People were not obliged to choose the lesser offense. Order unanimously affirmed, without costs. Present —■ Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ.