dissents and votes to affirm the judgment, with the following memorandum: The majority interprets the Randall case (People v. Randall, 9 N Y 2d 413) to hold that, as the statute then read, its reference to “one who carnally knows” another was intended to confine its operation exclusively to the one who uses his penis in the commission of the sodomous act. Even if it be assumed that such interpretation is correct, It *857should be noted that the holding is applicable only to a ease where the defendant is charged with sodomy as a felony; it is only in such a case that the voluntary recipient or pathic is absolved. That was not Randall’s only holding, however. It also held and, indeed, it emphasized that the voluntary pathic is guilty of a misdemeanor if the proof shows that he has voluntarily submitted himself or has otherwise aggressively instigated, solicited or initiated the sodomous act. The undisputed proof here shows that defendant’s conduct was of that kind: he, on his own initiative, unzippered the trousers of the other male; he, the defendant, exposed and manipulated the other male’s penis; and he, the defendant, placed his mouth over it. Under such circumstances, he was clearly guilty of a misdemeanor within the dual holding of the Randall case. It is also my opinion that the information here was sufficient to apprize the defendant of the fact that he was being charged with the commission of sodomy as a misdemeanor, since the information expressly stated that the defendant committed the sodomous act “under circumstances not amounting to Sodomy in the First Degree or Sodomy in the Second Degree.”