Opinion
April 25, 1955.
Appeal from Court of Special Sessions of the City of New York, Borough of Brooklyn.
Present — Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ.
Judgment modified on the law by setting aside the conviction of possessing a dangerous weapon, and by dismissing the second count of the information. As so modified, judgment unanimously affirmed. The findings of fact are affirmed. The sentence, as imposed, is approved and affirmed as punishment for conviction of the crime of assault in the third degree. There was ample evidence to justify the court's determination that appellant assaulted the complaining witness by striking him over the head with a wooden crate, but, under the circumstances here, the evidence was insufficient to establish a violation of section 1897 of the Penal Law. No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction.