The defendant made a formal motion pursuant to People v Sandoval (34 NY2d 371) to preclude the People from cross-examining him concerning his convictions (by way of guilty pleas) of attempted rape in the first degree in 1972, and several misdemeanors in 1973 and 1974, involving nonsexual crimes.
The court denied the motion stating: "The crimes of which he has previously been found guilty are not too remote in time to warrant an order barring the People from questioning the defendant with respect to those crimes on that issue alone, but I feel that the nature of the crime with which he is charged and the crimes of which he has already been found guilty or pled guilty to, are such that in the exercise of discretion I feel *151that the People should be permitted to inquire of the defendant as to those crimes, and therefore I deny the motion.” (Emphasis supplied.)
The court’s reasoning appeared to be that, in view of the defendant’s defense of alleged consent, the fact that he had previously pleaded guilty to an attempted rape affected his credibility and tended to prove he was lying and that there in fact had been no consent in the instant case "because it goes to the question of intent.”
The court stated: "If he takes the stand and says, T don’t deny it was done but it was done with her consent’, then it does affect his credibility if he previously pleaded guilty to committing rape, of the attempted rape to which he pleaded guilty because it goes to the question of intent, the credibility as to whether or not he intended to do it.”
I agree with the defendant that this was a misapplication of the rule of People v Molineux (168 NY 264) and an abuse of discretion because of the similarity and nature of the prior felony conviction (see People v Sandoval, supra; cf. People v Caviness, 38 NY2d 227).
The Court of Appeals, in People v Sandoval (34 NY2d 371, 376, supra), set forth the following two-pronged test to determine prejudice to a defendant: "Will the testimony to be elicited in cross-examination have a disproportionate and improper impact on the trier of fact? Will the apprehension of its introduction undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence?”
In this case, where there is little, if any, corroboration as to (1) the lack of consent, or (2) the possession of a weapon, or (3) unlawful imprisonment, it must be said that eliciting the defendant’s prior conviction of attempted rape would have had "a disproportionate and improper impact” on the jury. The prejudice to this defendant so far outweighed the probative value of such proof for impeachment purposes that it should have been excluded (see People v Duffy, 44 AD2d 298, affd 36 NY2d 258, remittitur amd 36 NY2d 857).
As to the second prong of the test, it is obvious that "the apprehension” of the introduction of the proof of the prior conviction "undesirably” deterred the defendant from taking the stand and thereby denied the jury "significant material evidence.” The defendant, who is presently serving a 10- to 20-year sentence as a result of the largely uncorroborated testi*152mony of the complaining witness, was effectively denied an opportunity to testify as to his version of the incident and was thereby deprived of a fair trial.
Equally important is the fact that a potentially dangerous precedent is being established by the affirmance of this conviction. Citing a Trial Term decision, the majority concludes that the impact of defendant’s prior conviction is "negated by the burden of proof which rests upon the prosecution, particularly where the charge is rape.” The fact is that the People’s burden of proof is no longer heavy, as is evidenced by the record in this case where the crime was committed in 1973. The necessity for corroboration in sex cases was further reduced in 1974 (L 1974, ch 14).
A brief review of our statutes concerning corroboration in rape cases is pertinent here. Section 2013 of the former Penal Law, and later section 130.15 of the revised Penal Law, in its original form, provided that corroboration of the victim’s testimony was required to extend to every material fact essential to constitute the crime of rape (see People v Radunovic, 21 NY2d 186). In other words, corroboration extended to penetration, lack of consent and identification of the defendant.
In 1972 section 130.15 of the Penal Law was amended to modify the corroboration requirement in two significant ways: (1) The corroborative evidence was required to extend only to an attempt to engage in the alleged sexual conduct in order to establish the consummated crime. In other words, proof of penetration was not required. (2) The identity of the defendant as the perpetrator did not require corroboration unless lack of consent was not an element of the rape or there was an incapacity to consent (i.e., "statutory” rape). In other words, in a forcible rape situation, corroboration of the identity of the perpetrator was not required.
In 1974 section 130.15 of the Penal Law was repealed and section 130.16 was enacted. This provision represented a major step in eliminating corroboration in sex offense cases. Thus, it is no longer required that a complainant’s testimony regarding the forcible rape be corroborated as to any element of the rape.
Consequently, I find little merit in the contention that the impact of the defendant’s prior conviction is "negated by the burden of proof which rests upon the prosecution” in rape cases.
*153The situation presented in this case, where the only witnesses to the alleged rape were the complainant and the defendant, is not uncommon and will no doubt recur in the future. To permit the complainant to testify without corroboration as to any element of the alleged rape, as provided in existing statutes, and at the same time to permit cross-examination of the accused "with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk * * * that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” (People v Sandoval, 34 NY2d 371, 377, supra). Thus, in rape cases, as in the prosecution of drug charges, interrogation as to prior convictions "may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted” of such offenses are likely to be habitual offenders (People v Sandoval, supra, pp 377-378).
Moreover, in this case, the court could have limited the People to cross-examining the defendant as to his three prior misdemeanor convictions and thereby insulated the determination of defendant’s credibility from the taint of "predisposition to crime.”
Accordingly, I would reverse the judgment of conviction and order a new trial.
Martuscello and Cohalan, JJ., concur with Hopkins, Acting P. J.; Damiani, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the Supreme Court, Queens County, rendered February 21, 1975, affirmed.