People v. Rytel , 18 N.Y.S.2d 58 ( 1940 )

Conviction of assault in the second degree reversed and modified to a conviction of assault in the third degree, and as so modified affirmed, and the judgment of this court is that the sentence be reduced to the time already served by the defendant and the defendant be discharged. Hill, P. J., Crapser and Bliss, JJ., concur; Heffernan, J., dissents, in a memorandum in which Schenck, J., concurs. Heffernan, J. I dissent and vote to affirm the judgment under review. The evidence fully justifies the verdict of the jury and the record is barren of any reversible error. There is no proof in the case to warrant a modification of the judgment. Defendant is either guilty of the crime of which he was convicted or not guilty of any offense. On no theory can it be said that only a charge of assault in the third degree has been proven. The action of the majority of the court in changing the result reached in the trial court is without legal authority and merely constitutes usurpation of power. Schenck, J., concurs with Hefíernan, J.