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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=48381

Judge Duggan

THE RESPONDENT was charged with rape and sodomy in the third-degree. Despite finding that the facts supported a finding of guilt for rape and sodomy in the first-degree and date rape, the court noted that respondent could not be found guilty of those uncharged crimes. However, it determined that the Court of Appeals’ ruling in Matter of Dwight M. authorized its consideration of lesser included offenses. Criminal Procedure Law §300.5 permits the court to consider a lesser included offense if the two-prong test in People v. Glover is met. With respect to the Glover test, the court determined that sexual misconduct is a lesser included offense of rape and sodomy in the third-degree. The court further found that there was a reasonable view of the evidence that the respondent committed the lesser but not the greater crime. The court found that the respondent had committed acts which, if done by an adult, would constitute two counts of sexual misconduct.

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