
    The People of the State of New York, Respondent, v. John Volpe, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 6, 1965.
    
      Max Fruchtman and Arnold E. Wallach for appellant. Isidore Dollinger, District Attorney (Irving Anolik of counsel), for respondent.
   Per Curiam.

Since the judgment found the defendant guilty of petit larceny (1st count) and of criminally concealing and withholding stolen and wrongfully acquired property, as a misdemeanor, (3d count), the same property set forth in the first count, it is contrary to law. The defendant was sentenced to six months on both counts, execution of the sentence being suspended. Where the property withheld is the same property the defendant is alleged to have stolen, the defendant may be convicted of either larceny or concealing and withholding, but not both. The action of concealing and withholding is but a continuation of the larceny itself. (People v. Daghita, 301 N. Y. 223.)

The judgment of conviction should be modified on the law to the extent of reversing the conviction for criminally concealing and withholding stolen property, as a misdemeanor, and of dismissing that count of the information, and, as so modified, the judgment of conviction should be affirmed.

Concur — Gold, J. P., Tilzer and Hofstadter, JJ.

Judgment modified, etc.  