(dissenting). While this is a sordid factual event, there is eyewitness testimony as to the existence of the knife and to the effect that the complaining witness did protest against sexual relationships with the defendant. The record contains ample evidence that the defendant had sexual intercourse with the complaining witness and the only question which might be considered doubtful would be whether or not her resistance was sufficient so that the sexual intercourse amounted to rape. As is conceded in the majority opinion, the fact that the defendant had a knife would be sufficient for the jury to infer that the complainant was prevented from any great resistance. There being ample evidence to establish that at the time of the initial connection the defendant had a knife, the conduct of the complainant in regard to resistance at such later time, as the defendant no longer had the lmife would merely be an element for the jury to consider in regard to whether there had been a rape. The primary issue for the jury in this case was the credibility of the complainant and the two eyewitnesses to the events, as well as that of the defendant. Whether or not the two eyewitnesses went to the aid of the complainant would have no bearing upon the sufficiency of the evidence for a conviction of rape, the con*338duct of the eyewitnesses at most being .sufficient to raise questions as to their credibility. While the majority criticizes the complainant for not promptly relating the event to the police, the record clearly discloses that at the time of these occurrences she was a runaway from home and was, -in fact, detained by the police because of her runaway status. In any event, the lack of a prompt disclosure or hue and outcry to the police would only appear to affect credibility.
The most favorable evidence for the defendant upon the question of consent would be the admission of the complainant that she had had sexual relationships with one of the eyewitnesses only a short period of time prior to the alleged rape. In regard to the propensity of a complainant to indulge in promiscuous intercourse it was noted in the case of Woods v. People (55 N. Y. 515, 517) that such evidence was “ proper for the consideration of the jury upon the question whether she assented to the intercourse ’ ’. It seems apparent that whatever the moral character of the complainant might he in a rape case, proof or evidence as to such character would not mean that the female could not be raped within the meaning of the Penal Law.
While the majority indicates that the passive conduót of the eyewitnesses constitutes “ incredible behavior”, it should be ■ further noted that the jury could well have found the defendant’s testimony to be incredible. The defendant testified that when he came into his room he realized that the complainant had no clothes on and thereafter he lay down on the bed with her and merely had a discussion with her, kissing her and touching her on various parts of her body. This would indeed appear to be a case where the conduct of the male eyewitnesses and defendant was something other than what would be expected; however, the record contains ample evidence from which the jury could have convicted the defendant of being guilty beyond a reasonable doubt.
The judgment should be affirmed-
Greenblott and Kane, JJ., concur with Main, J.; Herlihy, P. J., and Cooke, J., dissent and vote to affirm in a separate opinion by Herlihy, P. J.
Judgment reversed, on the law, and indictment dismissed.