Majority
p. 940The People of the State of New York, Respondent, v. Fernando Portillo, Appellant.
The evidence is sufficient to sustain the conviction, except as to the third count. There is no indication in the record that elimination of that count would have affected the sentence imposed below, nor do we find same excessive. Under the circumstances, the judgment is unanimously modified by eliminating the conviction on the third count and, as so modified, affirmed. Present — Peck, P. J., Callahan, Breitel, Botein and Rabin, JJ.