
    The People of the State of New York, Respondent, v Ronald Counts, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County (Ryan, J.), rendered February 9, 1981, convicting him of three counts of rape in the first degree, two counts of sodomy in the first degree, and assault in the second degree, upon a jury verdict, and sentencing him as a second felony offender to concurrent indeterminate terms of 12V2 to 25 years’ imprisonment on the rape and sodomy counts and a consecutive indeterminate term of ZYz to 5 years’ imprisonment on the assault count. Judgment modified, on the law, so as to provide that the sentence on the assault count shall run concurrently with the sentences imposed on the rape and sodomy counts. As so modified, judgment affirmed. The conviction for assault was predicated upon the same acts which gave rise to the convictions for the sex offenses. The sentence imposed for the assault must therefore run concurrently with the sentences imposed for the sex offenses (see Penal Law, § 70.25, subd 2; People v Underwood, 52 NY2d 882; People v Dorsey, 79 AD2d 611). It is noted that the court could have imposed consecutive sentences for the rape and sodomy counts (People v Dorsey, supra). On the basis that it is unclear whether the trial court would have sentenced defendant to consecutive terms on the rape and sodomy counts had it been aware of its sentencing mistake on the assault count, the People request a remand to that court for clarification and imposition of an appropriate sentence. However, in view of the retirement of the Trial Judge and also in light of his having sentenced a codefendant to the same concurrent terms for sex offenses (as well as a concurrent term for assault) to which he sentenced defendant, it is appropriate for this court to change the sentence to a lawful one and we do so. Gibbons, J. P., O’Connor, Weinstein and Niehoff, JJ., concur.  