Opinion
May, 1928.
Present — Lazansky, P.J., Rich, Young, Seeger and Scudder, JJ.
Judgment of conviction of the County Court of Kings county modified by striking therefrom the words "and Ten (10) years additional pursuant to Section 1944 of the Penal Law," and as so modified unanimously affirmed. Defendant was not amenable to section 1944 of the Penal Law, in the absence of proof or a concession that he was in possession of a gun. ( People v. Kevlon, 221 App. Div. 224; People v. Napaletano, 222 id. 774; People v. Paradiso, Id. 830.) The modification of the sentence herein is for error of law only.