Majority
p. 580The People of the State of New York, Respondent, v. Jose A. Colon and Fernando Colon, Appellants.
Appeals from two judgments of
p. 581
the Supreme Court, Kings County, one rendered August 29,1967 as to defendant Jose A. Colon and the other rendered' September 13, 1967 as to defendant Fernando Colon on resentence, convicting them of robbery in the first degree and other crimes, upon a jury verdict, and imposing concurrent sentences. Judgments modified, on the law and the facts, by striking therefrom the convictions of, and sentences for, assault in the second degree (with intent to kidnap [former Penal Law, § 242, subd. 5]) under the fifth count of the indictment and dismissing said count. As so modified, judgments affirmed. In our opinion the evidence was insufficient to support defendants’ convictions under the fifth count of the indictment. Upon the consent of the District Attorney the fifth count should be dismissed. Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.