Judgment, Supreme Court, Bronx County, rendered on June 10, 1971, unanimously modified, on the law and the facts, by reversing and vacating said judgment insofar as it convicts defendant of the crime of burglary in the third degree, and said judgment insofar as it convicts defendant of petit larceny affirmed, the count of the indictment charging defendant with the crime of burglary in the third degree dismissed, and, inasmuch as the defendant has served approximately one year and 10 months on the sentence imposed for burglary in the third degree and his sentence for petit larceny was an unconditional discharge but only in view of the burglary sentence, he shall be forthwith discharged from imprisonment. (See People v. Smith, 39 A.D.2d 855. ) It is unfortunate in view of the determination in People v. Smith ( supra) that the Legal Aid Society took so long to prosecute this appeal.
Concur — Stevens, P.J., Markewich, Kupferman and Tilzer, JJ.; Lane, J., concurs in the following memorandum: I concur under constraint of People v. Smith ( 39 A.D.2d 855).