In People v Scott (2009 NY Slip Op 03229 4th Dept 4/24/09) the Court reversed and dismissed the part of the judgment convicting defendant of rape in the first degree because it is an of predatory sexual assault against a child. The Court explained that pursuant to CPL 300.30 (4), concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a lesser offense included within the greater.
Here, the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law ยง 130.35 (4). Thus, it was impossible for defendant to commit predatory sexual assault against a child without, by the same conduct, committing rape in the first degree, thereby rendering rape in the first degree an inclusory concurrent count of predatory sexual assault against a child.
