
    The People of the State of New York, Respondent, v. Joseph Murphy, Appellant.
   Appeal by defendant from a judgment of conviction of the crimes of attempted rape in the first degree and assault in the second degree. Judgment of conviction of the County Court of Richmond county unanimously affirmed. The sentence for attempted rape in the first degree is reversed on the law and annulled. The sentence for assault in the second degree is approved and affirmed. Our disposition is governed by the same reasoning set forth in the accompanying appeal. (People v. Goggin, ante, p. 995.) A sentence of from two and one-half to five years was imposed for assault in the second degree and sentence was suspended for attempted rape in the first degree. While settled practice dictates the sentencing of a defendant under the highest count (People v. Edwards, 173 App. Div. 375; People ex rel. Thornwell v. Heacox, 231 id. 617), error was not committed by imposing a term of imprisonment under the second count. (Penal Law, § 1938.) The defendant cannot, however, be sentenced under both counts. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.  