People v. Malark

Defendant has been acquitted of the charge of rape in the second degree but has been convicted of the charge of assault in the second degree on a count in the indictment which alleged that he assaulted the complainant, a girl under eighteen years old, “ with intent to commit upon her the felony of rape ”.

*264The statute (Penal Law, § 242, subd. 5) provides that a person who “ assaults another with intent to commit a felony ” is guilty of assault in the second degree. The court instructed the jury in the barest terms, merely that if there was no sufficient evidence to convict the defendant of rape…