
    The People of the State of New York, Respondent, v. Clemence Buchanan, Alias Clement Buchanan, Appellant.
   Appeal from a judgment of the County Court of Broome county, entered November 26, 1937, convicting the defendant, after trial of an indictment charging the crimes of burglary in the third degree and grand larceny in the second degree. The defendant was indicted for breaking into a garage in the village of Deposit, and stealing used automobile tires, on August 4, 1937. The defendant contends that the verdict is against the weight of the evidence, that he did not have a fair trial, and that his guilt was not established beyond a reasonable doubt. The defendant did not take the stand, and offered no witnesses as to his guilt of the burglary and theft. The proof justified the finding of the jury that the garage in question was burglarized and the tires stolen as charged; that shortly thereafter they were foupd in the possession of the defendant, hidden by bushes and other growth along the road; and that he sold one of the tires while so in his possession. There was proof contained in a letter of the defendant which he had written to a fellow prisoner while in jail, that he attempted a conspiracy to place the guilt of the burglary and theft upon another person who was not charged with the crimes in question, and as to whose guilt there was no evidence. In other words, he attempted to fabricate a false defense. The defendant was convicted as a third offender, and was sentenced to State prison for a term of not less than fifteen years nor more than twenty years for the burglary, and seven and one-half to ten. years for the grand larceny, the terms to run consecutively. There is nothing in the record to indicate that defendant was armed at the time of the crime, or while in possession of the stolen property, or attempted bodily violence against anyone. The offense involves the breaking into an unoccupied garage at night, and the stealing of second hand tires worth $115. In our judgment the sentence is too severe. The judgment of conviction is affirmed. The sentence is vacated and set aside, and it is directed that the defendant be brought before this court for resentence at the term commencing on the 13th day of March, 1939. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ. [See post, p. 1027.]  