People v. Barr

Order unanimously reversed and proceeding remitted to the Onondaga County Court for a hearing. Memorandum: Petitioner alleges that he stands convicted, on his plea of guilty, of the crime of sodomy in the second degree, whereas he was indicted for that crime in the first degree only. Sodomy, second degree, is not necessarily an included crime or an inferior degree of the crime of sodomy, first degree (People v. Cipolla,

*7237 A D 2d 698, affd. as to this ground and reversed in part on other grounds 6 N Y 2d 922). He may well have been convicted of a crime of which he had not been indicted contrary…