People v. Timothy

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered June 20, 1980, convicting him of attempted rape in the first degree and attempted sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of attempted sexual abuse in the first degree, the sentence imposed thereon is vacated, and that count of the indictment is dismissed. As so modified, judgment affirmed. Section 130.35 of the Penal Law reads in relevant part: “A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: 1. By forcible compulsion”. Section 130.65 of the Penal Law reads in relevant part: “A person is guilty of sexual abuse in the first degree when he subjects another person to sexual *876contact: 1. By forcible compulsion”. We hold, under the circumstances herein, that attempted sexual abuse in the first degree constituted an inclusory concurrent count of attempted rape in the first degree (CPL 300.30, subd 4). As such, a finding of guilt upon the greater count mandates a dismissal of the lesser count (CPL 300.40, subd 3, par [b]). We have considered defendant’s other contentions and find them to be without merit. Mollen, P. J., Lazer, Weinstein and Rubin, JJ., concur.