¶1We respectfully dissent and vote to affirm. A basic concern of the cases relied upon by the majority, of which People v Kaminski (58 NY2d 886) is factually most apt, is that a defendant not be convicted of a crime for which he has not been indicted. In Kaminski, the indictment charged rape and sodomy by forcible compulsion by means of physical force only. The court, however, instructed the jury that it could find the defendant guilty if it found that either such force, or a threat placing the victim in fear of immediate death or physical injury to herself or to another person, was employed. In light of the proof, which was that the sexual offenses charged were occasioned not by force but rather by threats of harm directed at the victim and her baby, the magnitude of the error created by this instruction is apparent, for the defendant in Kaminskicould very well have been convicted of conduct not described in the indictment, in short, on an entirely different theory, one not intended by the Grand Jury.
¶2But that is not the case before us. Here, the theory of the *751indictment and the proof at trial are completely compatible. The indictment charged defendant with applying physical force to accomplish the rape and sodomy of the victim. That is precisely the behavior the prosecution told the jury it would prove and did so, overwhelmingly. That is exactly what defendant sought to demonstrate did not occur; he countered by interposing a consent defense. And, since there is absolutely no evidence that threats, express or implied, were resorted to, forcible compulsion by means of physical force was the only conceivable conduct that could have given rise to the jury’s verdict.
¶3Unlike Kaminski, there is simply no evidence upon which the guilty verdict could have been based other than that defendant used physical force. The charge then, insofar as it alluded to forcible compulsion by threats, was meaningless and constitutes nothing more than harmless error. In these circumstances, to give this error a constitutional dimension not only disserves the criminal justice system, but works an unspeakable irony for it needlessly subjects the victim to the psychologically lacerating experience of reliving her encounter with defendant.