
    The People of the State of New York, Respondent, v Earl T. Smith, Appellant.
   — Judgment unanimously modified as a matter of discretion in the interest of justice by vacating defendant’s convictions for rape, first degree, and endangering the welfare of a child and by adjudicating defendant a youthful offender and imposing a sentence of IVz to 4 years, and otherwise judgment affirmed. Memorandum: We agree with the trial court that this was an extremely "troubling” and "tragic” case. Defendant (who was 18 years old at the time) was convicted of first degree rape for engaging in sexual intercourse with a 15-year-old girl, who had been drinking heavily at defendant’s house and thereafter died of acute alcohol intoxication. Defendant was convicted under Penal Law § 130.35 (2) for engaging in sexual intercourse with a female "who is incapable of consent by reason of being physically helpless.” His application for treatment as a youthful offender was summarily denied and he was sentenced as an adult to 3 Vi to 10 years. The court noted that the Legislature did not distinguish between the act of sexual intercourse involving a victim incapable of consent by reason of being physically helpless, and a rape involving forcible compulsion.

Although the victim died of acute alcohol intoxication, the jury absolved defendant of any liability for her death. Had defendant not fully cooperated with the police and given them a statement admitting that he had sexual intercourse with the victim prior to her death, there would not have been any basis for charging defendant with any crime. Defendant has no prior criminal record. Weighing all the appropriate factors, we exercise our discretion (CPL 470.15) by vacating the convictions herein, adjudicating defendant a youthful offender (see, People v Cruickshank, 105 AD2d 325, affd sub nom. People v Dawn Marie C., 67 NY2d 625; People v Moragne, 124 AD2d 1017) and imposing a sentence of lVi to 4 years (see, CPL 720.10 [2] [a]; [3]; Penal Law § 60.02 [2]; People v Noel, 106 AD2d 854, 855). (Appeal from judgment of Supreme Court, Monroe County, Cornelius, J. — rape, first degree, and another offense.) Present — Dillon, P. J., Callahan, Doerr and Boomer, JJ.  