Upon appeal to this court from a judgment of the County Court of Chemung County convicting defendant, inter alia, of the crime of assault in the second degree in violation of subdivision 5 of section 242 of the Penal Law, such judgment was reversed on the law and that count of the indictment dismissed (25 A D 2d 50). Upon appeal to the Court of Appeals, this court’s order was modified (19 N Y 2d 37) and the case remitted to this court for disposition of the facts in accordance with section 543-b of the Code of Criminal Procedure. Motion to restore appeal to the calendar granted, and upon restoration, the judgment of the County Court of Chemung County, convicting defendant of the crime of assault in the second degree in violation of subdivision 5 of section 242 of the Penal Law, and sentencing him to an indefinite term in accordance with article 3-A of the Correction Law, is affirmed. The findings of fact implicit in the verdict of the jury and the exercise of discretion are affirmed. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur.