The People of the State of New York, Respondent, v. Walter C. Kelczewski, Appellant

The People of the State of New York, Respondent, v. Walter C. Kelczewski, Appellant. [MAJORITY] Defendant was indicted by a grand jury, Schenectady County, for assault in the third degree. On plea of guilty the Schenectady County Court pronounced sentence that he be confined in the New York State Reformatory at Elmira, New York, under provisions of the law applicable thereto. This sentence was in excess of the powers of the court, and is reversed on the law and facts. He may not be sentenced to more than one year in the Schenectady County jail and fined under the provisions of the statute. The judgment and sentence of this court is that the defendant-appellant be confined in Schenectady County jail for a term of three months; further defendant-appellant is to pay a fine of $500 and in the event of failure to pay the fine that he be confined in the Schenectady County jail one day for each dollar of the fine unpaid. The sentence as to the payment of the fine and service of time upon" failure to pay is suspended during defendant-appellant’s good behavior. A further and absolute condition of the suspension of the $500 fine is that he indulge in no alcoholic drinks of any kind. After discharge, following the time to be served, defendant-appellant is required to report to the probation officer of Schenectady County every two weeks, and that officer in the event of delinquency will report to Mr. John S. Herrick, the clerk of this court. Hill, P. J., Heffernan, Foster, Russell and Deyo, JJ., concur.