People v. Hess

Judgment of conviction of the County Court of Queens county modified by striking therefrom the additional sentence of “ not less than five (5) years nor more than ten (10) years, pursuant to Section 1944 of the Penal Law,”* and as so modified unanimously affirmed; defendant remanded to the County Court for resentence accordingly. This modification is for error of law only. The additional sentence was unauthorized inasmuch as the uncontradicted testimony *736shows that the pistol was in the possession of and used by Olsen in the commission of the crime and was not possessed by this defendant or used by him in connection therewith. Present — Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ.