Opinion
November 17, 1944.
Appeal from Court of Special Sessions of the City of New York, New York County.
The evidence fails to establish the first count of the information charging the defendant with the crime of unlawful entry. ( People v. Orr, 270 N.Y. 193; People v. Cooperman, 279 N.Y. 599.) The second count charging the defendant with the crime of assault in the third degree is, however, fully established by the proof.
Since the sentence on each count runs concurrently, dismissal of the first count of the information does not otherwise affect the judgment of conviction.
The judgment should be modified by dismissing the first count of the information and eliminating the sentence imposed thereon, and otherwise affirmed.
Martin, P.J., Untermyer, Dore, Cohn and Callahan, JJ., concur.
Judgment unanimously modified by dismissing the first count of the information and eliminating the sentence imposed thereon, and otherwise affirmed. Settle order on notice.