It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the sentence as a persistent felony offender imposed on the two counts of assault in the second degree and as modified the judgment is affirmed, and the matter is remitted to Herkimer County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him...
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