People v. Liberta , 100 A.D.2d 741 ( 1984 )

Judgment unanimously affirmed. Memorandum: The defendant appeals from a judgment of conviction of rape in the first degree and sodomy in the first degree committed against his wife. At the time of rape and sodomy, the defendant and wife were living apart after a “Temporary Order of Protection” had been granted by Family Court. This court has previously determined that the wife falls under the category of “female” in the statute defining sex offenses (Penal Law, § 130.00, subd 4, as amd L 1978, ch 735; People v Liberta, 90 AD2d 681). Although the statute is gender based, the lower courts in this State have consistently held that the statute withstands the constitutional challenge (People v Smith, 97 Misc 2d 115; People v Fauntleroy, 94 Misc 2d 606, revd on other grounds 74 AD2d 612; People v Reilly, 85 Misc 2d 702). “ ‘To withstand scrutiny’ under the Equal Protection Clause, ‘ “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” ’ ” (Orr v Orr, 440 US 268, 279, citing Craig v Boren, 429 US 190, 197). The classification is rationally related to a legitimate State objective (see People v Whidden, 51 NY2d 457). Nor is the statute unconstitutional by reason of the marital classification, as long as there is a rational basis for different treatment accorded married and unmarried persons (Eisenstadt v Baird, 405 US 438). We have examined the other arguments of the defendant and find them without merit. (Appeal from judgment of Supreme Court, Erie County, McGowan, J. — rape, first degree, and sodomy, first degree.) Present — Doerr, J. P., Boomer, O’Donnell and Schnepp, JJ.