Judgment, Supreme Court, Bronx County (Goldfluss, J.), rendered March 12, 1980, convicting defendant, after jury trial, of rape in the first degree (two counts), burglary in the first degree, assault in the second degree and robbery in the second degree, and sentencing him, respectively, to two terms of 8 1/3 to 25 years, a term of 8 1/3 to 25 years, a term of 2 1/3 to 7 years and a term of 2 to 6 years, said terms to run consecutively, unanimously modified, on the law, to the extent of running the respective sentences for the rape and assault convictions arising from the Linehan incident concurrently instead of consecutively, and, except, as thus modified, affirmed. As the People, with commendable candor, note in their brief, the assault conviction was based upon physical injury to the complainant Linehan during the course of the rape. Thus, the two crimes were part of an act in which one offense was a material element of the other. In such circumstances, the sentences must run concurrently. (Penal Law, § 70.25, subd 2.) We have examined defendant's contentions and find that they are without merit.
Concur — Kupferman, J.P., Sandler, Sullivan, Ross and Carro, JJ.