Rape in the First Degree Deemed Inclusory Concurrent Count

In People v. Henry Scott, the Fourth Department reversed a conviction for Rape in the First Degree on the grounds that it was an inclusory concurrent count of Predatory Sexual Assault Against a Child. The Court explained that:

"the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law § 130.35 (4). Thus, it was impossible for defendant to commit predatory sexual assault against a child without, by the same conduct, committing rape in the first degree..."