Modified, on the law and the facts, by vacating the sentence. As so modified, judgment affirmed and appellant remanded to the trial court for resentence.
We are of the opinion that appellant received a fair trial, was properly convicted and received a legal sentence. The sentence minutes, however, reveal that the court misconstrued its power to determine upon which count of the indictment it could sentence. Under section 2188 of the Penal Law, the court in this case...
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