Opinion
May 12, 1948.
Appeal from County Court of Essex County.
The judgment of conviction directed that each of the defendants be sentenced to an indeterminate term, the minimum of which was not less than one year and three months and the maximum of which was not more than two years and six months, in Clinton Prison at Dannemora, New York. In addition thereto, the defendant Potskowski was fined the sum of $1,000. In the case of the defendant LaDue the judgment of conviction is reversed, on the law and facts, and the indictment dismissed. In the case of the defendants Potskowski and Capuano the judgment in each case is modified, on the law and facts, and the judgment of conviction in each case is reduced from the crime of assault in the second degree to the crime of assault in the third degree. The judgment of conviction as to these two defendants is that the sentence in each case be reduced to the time which they have already served in Clinton Prison at Dannemora, New York, and each of the defendants is discharged from further imprisonment. In the case of the defendant Potskowski the fine is reduced from the sum of $1,000 to the sum of $500. Upon the nonpayment of such fine that defendant is directed to serve one day for each $1 of the fine unpaid in the County Jail of Essex County. Heffernan, Foster and Russell, JJ., concur; Hill, P.J., and Deyo, J., dissent.