People v. Whitfield

Judgment reversed, on the law and facts, and indictment dismissed. Memorandum: Defendant was indicted for rape first degree (Penal Law, § 130.35). At defendant’s request the court charged down to sexual misconduct (Penal Law, § 130.20) but it did so knowing that the District Attorney had insisted throughout the trial in response to several inquiries of defense counsel that the sole theory of the prosecution was forcible rape. The jury retired and after several hours returned for additional instruction on consent. Over the exception of the defendant the court charged for the first time that…