The defendant has preserved his rights to raise the constitutional question that his conviction of statutory rape (Penal Law, § 130.25, subd 2) is in violation of the Fourteenth Amendment to the United States Constitution in that subdivision 3 of section 15.20 of the Penal Law provides that his knowledge of the age of the minor is not an element of the offense. He contends that the complaining witness not only voluntarily consented to sexual activities with the defendant, but that she also produced an identification card to substantiate her verbal declaration that she was over the age of 18.
While used in another context, the analysis of the United States Supreme Court in Sandstrom v Montana (442 US 510), with respect to the question of "intent” indicates that an absolute presumption may not be made that one acted purposefully and knowingly. (Cf. People v Hernandez, 61 Cal 2d 529.)
This matter should be reversed and remanded for trial.
Murphy, P. J., Birns and Sandler, JJ., concur with Sullivan, J.; Kupferman, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on June 22, 1978, affirmed.