
    The People of the State of New York, Respondent, v. Walter A. McDermott, Appellant.
   The indictment in two counts charges defendant with perjury. The first count charges the defendant with the crime of perjury in the first degree, in that he willfully and knowingly testified falsely before the Grand Jury and that his false testimony was as to material matter in or in connection with the investigation and inquiry then being conducted by the Grand Jury. The second count charges the defendant with the crime of perjury in the second degree. The allegations of the second count are similar to those of the first count, except that the second count contains no allegation of materiality. Defendant was convicted of the crime of perjury in the first degree and sentenced to State prison for an indeterminate term, the maximum of which was to be three and the minimum one and one-half years. The proof was insufficient to establish that the defendant’s false testimony was as to any material matter in or in connection with the investigation and inquiry then being conducted by the Grand Jury. Therefore, the record does not sustain the judgment with respect to the degree of crime of which defendant was found guilty, to wit, perjury in the first degree. The record does, however, warrant a judgment of conviction of a lesser degree of such crime, to wit, perjury in the second degree. Judgment modified on the law and the facts by reducing the judgment of conviction to the crime of perjury in the second degree. The sentence is reduced by fining the defendant the sum of $500, and in default of the payment thereof it is directed that he be committed to the county jail for a term of three months. As so modified, the judgment is unanimously affirmed. (Code Grim. Pro. § 543, subd. 2.) Present — Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ.  