
    The People of the State of New York, Respondent, v. Jose Torres, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kangs County, entered November 9, 1962, convicting him of selling narcotics as a felony, upon a jury verdict, and imposing sentence therefor and also upon the third count in the indictment. Judgment modified, on the law, by striking out so much of the sentence as was imposed on the third count. As so modified, judgment affirmed: In view of the fact that the third count of the indictment (unlawful possession of narcotics) was not submitted to the jury, so that defendant was not found guilty thereon, there was no basis upon which he could have been sentenced on that count.

Beldock, P. J., Ughetta, Hill, Rabin and Benjamin, JJ., concur.  