Opinion
April 11, 1962
Appeal from the Erie County Court.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment unanimously modified by vacating the sentence of imprisonment for one year in the Erie County Penitentiary and the fine of $500 imposed on the count charging assault in the third degree, and as so modified judgment of conviction affirmed. Memorandum: The appellant was convicted of second degree assault under subdivision 5 of section 242 of the Penal Law for assault on an officer, with intent to prevent the execution of a search warrant. He was also convicted of assault in the third degree under section 244. The same assault which constituted the third degree offense under section 244 was an essential element of the second degree offense under section 242. Proof of the latter could not be made without the former. Since the offenses are based on the same single act, there could be but one punishment under section 1938 of the Penal Law. Imposition of a consecutive sentence was improper. ( People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264.) In any event, upon the facts here presented, the imposition of a penitentiary sentence of one year and a $500 fine to follow the sentences here imposed upon the felony convictions was an improper exercise of discretion.