285 A.D. 1114 | N.Y. App. Div. | 1955
Judgment of conviction modified, on the law, in accordance with the memorandum and, as modified, affirmed. Memorandum: We find that the evidence is ample to sustain the verdict of guilty of assault in the second degree under both counts of the indictment. The court sentenced the defendant under both counts of the indictment. There was only one crime charged. There was only one transaction. The defendant could be sentenced upon one count only. The fact that he was found guilty of the crime charged, committed in two different ways, does not permit of two separate sentences. He may be punished for only one crime. (Penal Law, § 1938; People v. Goggin, 256 App. Div. 995, affd. 281 N. Y. 611; People ex rel. Thornwell v. Heacox, 231 App. Div. 617; People v. Pauley, 281 App. Div. 223.) The judgment of conviction should be modified to read: “ for the term of not less than two years and six months and not more than ten years, on the first count of the indictment, as a second offender.” As so modified, the judgment of conviction should be affirmed. All concur. (Appeal from a judgment of Erie County Court, convicting defendant of the crime of assault, second degree, on two counts.) Present —- McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.