
    The People of the State of New York, Respondent, v. Roger Heath, Appellant.
    First Department,
    June 17, 1938.
    
      Joseph C. Morris, for the appellant.
    
      Charles C. Tillinghast, Jr., of counsel [Karl Qrebow with him on the brief; Thomas E. Dewey, District Attorney,], for the respondent.
   Per Curiam.

In our opinion the record does not sustain the judgment with respect to the degree of the crime found,” to wit, assault in the second degree, but does warrant a judgment of conviction of a lesser degree of such crime,” to wit, assault in the third degree.

The judgment should be modified by reducing the judgment of conviction to the crime of assault in the third degree and the sentence reduced to the time already served, and as so modified affirmed. (Code Crim. Proc. § 543, subd. 2, as amd. by Laws of 1936, chap. 68.)

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Judgment modified by reducing the judgment of conviction to the crime of assault in the third degree and by reducing the sentence to the time already served, and as so modified affirmed.  