Majority
p. 1046The People of the State of New York ex rel. Arthur Corkum, Appellant, v. Joseph H. Wilson, as Warden of Great Meadow Prison, Respondent.
Appeal from an order dismissing a writ of habeas corpus. Appellant was convicted
p. 1047
under 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.