Judgment unanimously modified on the law and facts by reducing the degree of the crime of which appellant is convicted under the second count of the indictment (grand larceny, first degree) to grand larceny, second degree; and by imposing sentence therefor of not less than 3% nor more than 7 years at Attica State Prison, such sentence to be served concur*1035rently with the sentence imposed under the first count of the indictment and, as so modified, the judgment is affirmed. Memorandum: The trial court erred in charging the jury as a matter of law that the larceny of property from the person of complainant took place in the night time (cf. Penal Law, § 1294, subd. 1) and in refusing to charge the lesser crime of grand larceny, second degree. The proof was overwhelming from both complainant and a codefendant, who testified for the People, that it was daylight when the crime was committed. (Appeal from judgment of Onondaga County Court convicting defendant of robbery, first degree and grand larceny, first degree.) Present — Bastow, P. J., Williams, Del Vecchio, Marsh and Witmer, JJ.