OPINION OF THE COURT Wachtler, J. The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in title presence of their 2% year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the…
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