People v. Di Noia

Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Westchester County (Miller, J.), both rendered December 2, 1983, convicting each of them of two counts of rape in the third degree, after a nonjury trial, and imposing sentence.

Judgments affirmed and matter remitted to the Supreme Court, Westchester County, for further proceedings pursuant to CPL 460.50 (subd 5).

Appellants were accused of engaging in sexual intercourse with a female who was incapable of consent due to being mentally incapacitated (see Penal Law, § 130.25, subd 1; § 130.05, subd 3, par…