
    The People of the State of New York, Respondent, v. Armathan Harris, Appellant.
   Judgment of the Supreme Court, Queens County, rendered April 20, 1966, reversed, on the law and the facts and in the interests of justice, and indictment dismissed. Upon a multiple count indictment defendant was convicted by the jury only of assault in the second degree with intent to commit rape. Essentially, the proofs were that defendant had been in the company of the complainant for approximately six hours during the night and early morning of the dates in question. They celebrated her 21st birthday together by drinking Scotch whiskey in various amounts at four different bars. The complainant claimed that she had hired defendant, a private taxicab driver, for the night and when he drove her to her home at 4:00 a.m. he parked the ear and grabbed at her. She testified that he ripped her coat collar, touched her private parts and unzippered his pants zipper. The occurrence in the car lasted three or four minutes. Defendant had been the complainant’s friend and employer and he even helped to get her a better job when she left his employ. A police officer said that upon his arrival at the scene appellant said he had only wanted to “make out a little”. Defendant testified that on one prior occasion he had paid the complainant to have sexual intercourse with him. On the night in question they haggled over the price of her favors in the car; when he tried to trick her by giving her less money than she demanded, she screamed and accused him of rape. He denied touching her at all. Under the circumstances of this case, the essential element of “ intent to commit rape ” was lacking and not proved. In the interests of justice, the indictment should be dismissed. Christ, Acting P. J., Brennan, Rabin, Munder and Martuscello, JJ., concur.  