People v. Cipolla

Halpern, J. (dissenting in part).

I concur in the reversal of the judgment but I dissent from the dismissal of the second count of the indictment charging sodomy in the first degree. The crime of sodomy in the second degree was submitted to the jury as an included crime under that count, without exception. The jury found the defendant guilty of sodomy in the second degree under that count; that was the only disposition of the count made by the jury. Upon the reversal of the judgment of conviction entered upon the jury’s verdict, the verdict is completely nullified as to that count of the…