Appellate Division of the Supreme Court of the State of New York January 27, 1954 (People v. Malark)

Per Curiam.

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.