majority">Per Curiam.

Appellant attacks the indictment under which his conviction was had, upon the ground that the court’s dismissal of the rape count “ nullified the count charging first degree burglary.” The second count separately charged an attempt at rape, an assault committed during the commission of which was an essential element of the crime charged in the first count. The mere fact that after the plea to the first count *475the second count was dismissed, as an act of mercy or for whatever reason, had no legal effect upon the validity of the first count. The first count is good even if there had been no second count. Moreover appellant failed to challenge the sufficiency of the indictment in the court below. He may not. •now raise that question for the first time on appeal.

But the conviction should be reversed and the defendant be permitted to withdraw the plea of guilty which was a basis of his conviction. The County Judge had power to grant defendant’s motion for permission to withdraw his former plea and enter a plea of not guilty. (Matter of Lyons v. Goldstein, 290 N. Y. 19.) Moreover at the time the motion was made the sentence had not gone into execution. The defendant was still m the custody of the sheriff and was before the court when he sought to withdraw his plea. The court’s remarks indicate doubt as to whether after “ a most searching investigation ” the assault committed upon the complainant was during the commission of a felony or a misdemeanor. It is noted that while the date of the crime charged is February 18,1944, the complainant’s information was not taken until the sixth day thereafter and we are not told of anything which explains the delay of the prosecutrix in making her outcry. Such delay is, of course, entirely consistent with the fact that the defendant’s purpose in breaking into the house was to commit adultery only. While there can be little doubt that an assault upon a woman committed in the course of attempting to rape her, is in all respects a criminal assault, still there may be doubt as to whether acts which otherwise might constitute an assault and battery are such when performed in connection with a solicitation to persuade the female to join in an act of adultery. As charged in the indictment, defendant was not guilty of burglary in its highest degree unless his assault upon her was in itself a criminal act committed as a part of his attempt to ravish her. Since the court seemed to have had some doubt as to whether the component crime was attempted rape, or adultery, and since, if the latter, there is serious doubt as to whether a necessary element of first degree burglary was present, we are convinced that as an act of justice the court should have granted the motion and have let the matter go to a jury. The very seriousness of the crime charged and the heavy mandatory punishment prescribed therefor helps to persuade us to this view.

The judgment of conviction and the order of the County Court denying defendant’s motion for permission to withdraw his plea of guilty and to enter a plea of not guilty should be reversed.

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