People v. Miller , 544 N.Y.S.2d 754 ( 1989 )

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: As conceded by the District Attorney, the verdict of not guilty of burglary in the first degree (Penal Law § 140.30 [2]), but guilty of burglary in the second degree (Penal Law § 140.25 [2]) and guilty of assault in the second degree and assault in the third degree is repugnant. We therefore modify the judgment by vacating the convictions of assault in the second degree and assault in the third degree and the sentences imposed thereon. (Appeal from judgment of Jefferson County Court, Aylward, J. — burglary, second degree, and other charges.) Present — Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.