People v. Shaffer , 34 N.Y. Crim. 553 ( 1916 )

Cochrane, J. (concurring in result) :

Tf the sentence was excessive it should have been -modified by the County Court (Code Crim. Proc. § 764; People v. McIntosh, 5 N. Y. Cr. Rep. 38; People v. Starks, 17 N. Y. St. Repr. 234), and I see no reason why this court may not now make the modification of the sentence which should have been made by the County Court without granting a new trial if the verdict of the jury was properly reached. But the crime alleged in the information before the justice of the peace is not sustained by the evidence, and for that reason I concur in the reversal of the judgment.

Judgment of conviction of the County Court and of the Justice’s Court reversed, and a new trial granted before a justice at a time and place to be designated in the order. Order to be settled before Woodward, J.