
    The People of the State of New York, Respondent, v. Howard Rubanow, Appellant.
   Appeal by defendant from two judgments of the Supreme Court, Queens County, both rendered April 11, 1972, (1) one convicting him under indictment No. 3775-71 of two violations of section B32-352.0 of the Administrative Code of the City of New York and a violation of subdivision 1 of section B32-358.0 of said code, after a nonjury trial, and imposing sentence and (2) the other convicting him under indictment No. 3712-71 of a violation of section B32-352.0 of said code, upon his plea of guilty, and imposing sentence. Judgment under indictment No. 3775-71 modified, on the law, by reversing the conviction and sentence on the fourth count of the indictment, which charged a violation of subdivision 1 of section B32-358.0 of the Administrative Code of the City of New York, and by dismissing said count. As so modified, judgment affirmed. Judgment under indictment No. 3712-71 reversed, in the interests of justice, plea of guilty thereunder vacated, and case remanded to Criminal Term for further proceedings not inconsistent herewith. With respect to the judgment under indictment No. 3775-71, in our opinion the evidence, particularly with respect to the issue of whether or not defendant was justified in abandoning the home improvement contract, was insufficient to establish his guilt beyond a reasonable doubt. With respect to the judgment under indictment No. 3712-71, in our opinion the comment by the trial court that he was not going to impose a jail sentence in connection with the conviction rendered after trial (under indictment No. 3775-71) may well have led defendant to offer his plea of guilty under the mistaken belief that a jail sentence would not be imposed upon a conviction under indictment No. 3712-71. Hopkins, Acting P. J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.  