Opinion
June 28, 1954.
Appeal from County Court, Kings County.
Present — Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ.
Judgment modified on the law by eliminating the sentence for manslaughter in the second degree, and as so modified judgment unanimously affirmed. (Penal Law, § 1938; People v. Repola, 280 App. Div. 735, affd. 305 N.Y. 740; People v. Goggin, 256 App. Div. 995; People v. Murphy, 256 App. Div. 995; People v. Edwards, 173 App. Div. 375.) While the findings of the jury were justified by the evidence, and are affirmed, nevertheless, guilt on both counts of the indictment was predicated on the same set of facts, which embraced the violation of the Multiple Dwelling Law, the heating of the preparation to be applied to the roof, the resulting fire and the death of two persons. The sentence should have been limited to the conviction for the offense of the higher degree. No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction.