Opinion
Argued October 13, 1948
Decided January 13, 1949
Appeal from the Supreme Court, Appellate Division, Second Department, DOWNS, J.
James A. Fitz Patrick for appellant.
Charles P. Sullivan, District Attorney ( Howard R. Lonergan of counsel), for respondent.
On this meager record the sentencing court was not justified in sentencing the defendant as a second offender. Judgment modified by remitting case to County Court of Queens County for resentence, and as so modified affirmed. No opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ.