People v. Navarette — 245 A.D. 669

Majority

p. 669

The People of the State of New York, Respondent, v. Philip Navarette, Appellant, Impleaded with Ralph Souffront, Defendant.

First Department,

December 27, 1935.

p. 670

Theodore Berger, for the appellant.

Lyon Boston, Deputy Assistant District Attorney, of counsel [William Copeland Dodge, District Attorney], for the respondent.

The defendant Navarette was charged in two separate counts in the information filed in the Court of Special Sessions with a violation, respectively, of sections 974 and 973 of the Penal Law. The first count in substance related to the possession of a policy slip, whereas, in the second count he was accused of unlawfully keeping a room used for gambling. The court rendered a general verdict of guilty, with one justice dissenting.

We are of the opinion that there was sufficient evidence adduced upon the trial upon which to base a conviction of the defendant of the possession of the policy slip. However, the proof did not sustain the charge which is set forth in the second count of the information.

Under the circumstances we believe the sentence should be modified by reducing the term of imprisonment to a period of thirty days in the workhouse, and as so modified affirmed.

Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

Judgment modified by reducing the term of imprisonment to a period of thirty days in the workhouse, and as so modified affirmed.