Judgment rendered October 9, 1961, convicting defendant of assault in the second degree with intent to commit the crime of rape and two counts of placing a child in such a situation as likely to impair her morals, unanimously modified, on the law, by vacating the conviction under count 2 (placing a child in such a situation as likely to impair her morals), and, as so modified, affirmed. The jury disagreed as to count 3 (exposure of person) which is alleged to have occurred at the same time and place as the incident referred to in count 2. We hold defendant's guilt on count 2 was not established beyond a reasonable doubt. Defendant was sentenced on the felony count as a second felony offender and sentence was suspended on each of the two misdemeanor counts. On this record we do not find the sentence imposed to be excessive. The order of this court entered on June 18, 1963 is hereby vacated.
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.