
    The People of the State of New York, Respondent, v Joseph Kerns and Robert Max, Appellants.
   Appeal by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County, both rendered May 15, 1975, convicting them of attempted possession of untaxed cigarettes, upon a jury verdict, and imposing sentence. Judgments reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered (see People v DeFiore, 51 AD2d 806). The People agree that our decision in People v DeFiore (supra) requires a reversal. Latham, Acting P. J., Damiani, Shapiro and Titone, JJ., concur; Cohalan, J., concurs on constraint of People v DeFiore (51 AD2d 806).  