CPL 300.50

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  6.  For  purposes  of  this section, the offenses of rape in the third
degree as defined in subdivision three of section 130.25  of  the  penal
law  and  sodomy  in the third degree as defined in subdivision three of
section 130.40 of the penal law, are not  lesser  included  offenses  of
rape  in  the  first  degree,  sodomy  in  the first degree or any other
offense. Notwithstanding the  foregoing,  either  such  offense  may  be
submitted  as  a  lesser included offense of the applicable first degree
offense when (i) there is a reasonable view of the evidence which  would
support  a  finding that the defendant committed such lesser offense but
did not commit the greater offense, and (ii) both parties consent to its
submission.