
    The People of the State of New York, Respondent, v. Ernest Scott, Appellant.
   Memorandum: We find no proof in the record that justified the trial court in submitting to the jury the count of the indictment charging the defendant with having committed assault second degree — an assault with intent to commit a felony (Penal Law, § 242, subd. 5). While there was proof that appellant carried the girl out of her home any finding by the jury that this was done, as suggested by the court, with intent to commit rape or kidnapping would be based on surmise or speculation. This issue obviously troubled the jury and the original error was compounded when they returned for additional instructions and were told that the crime was assault with intent to commit a crime ” and not a felony. Inasmuch as the proof would only sustain a finding of guilt of assault, third degree — that is an assault and battery (3 N. Y. Jur., Assault and Battery, § 1) • — -we modify the judgment accordingly (Code Crim. Pro. § 543, subd. 2; People v. Monaco, 14 N Y 2d 43). (Appeal from judgment of Cayuga County "Court convicting defendant of burglary, first degree, and assault, second degree.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.  