Defendant was indicted by the Grand Jury of Delaware County for a misdemeanor, namely unlawfully entering a building. Prior to his indictment defendant had retained counsel to represent him. The attorney was not present upon the arraignment and the court assigned another attorney to represent him. Defendant entered a plea of guilty and was thereupon sentenced by the court to imprisonment in the Onondaga Penitentiary for a period of nine months. From that judgment the defendant has appealed. The record shows that defendant was not previously involved in any violation of law and the offense charged against him is his first. Defendant has already served a portion of his sentence. In the opinion of the court the sentence imposed upon defendant is too severe. The judgment of conviction is modified on the law and the facts, and the sentence is reduced to the time which defendant has already served in the County Jail of Delaware County and in the Onondaga Penitentiary and as thus modified the judgment is affirmed, and defendant is discharged from further imprisonment. Heffernan, Foster and Russell, JJ., concur; Hill, P. J., and Brewster, J., dissent. [191 Misc. 395.]