Judgment of conviction reversed on the law and facts and indictment dismissed. Memorandum: The defendant was indicted on one count of kidnapping, one count of assault and two counts of sodomy in the first degree. The Trial Judge submitted kidnapping, assault and both counts of sodomy first degree to the jury and also submitted sodomy in the second degree upon the erroneous theory that sodomy second was an “included crime” or a "degree inferior” to the charge of sodomy first and therefore could properly be submitted under sections 444 and 445 of the Code of Criminal Procedure. The jury returned a verdict of not guilty of kidnapping and assault and, “ The second count, sodomy, we find the defendant guilty of sodomy in the second degree. On the third count of sodomy we find the defendant not guilty.” That sodomy second of which defendant was convicted was not such an *699“included crime” was determined in People v. Burch (281 App. Div. 348), a case which considered a similar question with respect to rape in the first and second degrees. The statutory language of the Penal Law for rape and sodomy is the same for all practical purposes; therefore, the Bur eh case is determinative as to both crimes. Since sodomy second was not an “ included crime,” defendant was convicted of a crime with which he was not charged. The Trial Judge charged the jury that they could convict defendant of sodomy first or second degree, but not both, depending on their determination of the facts. The verdict, therefore, amounted to an acquittal of all other charges in the indictment (People v. Migliori, 271 App. Div. 798; Guenther v. People, 24 N. Y. 100). We all agree that the judgment of conviction must be reversed because defendant was convicted of a crime for which he was not indicted. However, there is a difference of opinion with respect to whether the indictment should be dismissed or whether defendant can be retried on the count of sodomy first. There are eases which indicate that a defendant, by appealing, waives his right not to be placed in jeopardy twice for the same crime because he brings the entire judgment before the reviewing court. Many of these cases, however, concern “included crimes” for which such reasoning follows logically. Some of the others seem not to have considered the question, e.g., People v. Santoro (229 N. Y. 277). In the present case, however, the elements of the crime charged are not the same (People v. Dowling, 84 N. Y. 478), and when the defendant was acquitted of sodomy first, which was the only charge of sodomy contained or included in the indictment, the indictment fell and he could not be retried under that indictment. In other words, he was acquitted of the only crime of sodomy of which he was charged. The indictment must be dismissed as it was in the Burch case (supra) and in People v. Andrewski (282 App. Div. 827).