The indictment upon which defendant was tried charged the aforesaid crimes in its second and third counts, respectively. The proof of defendant's criminality presents it as his conduct with the prosecutrix at a particular place in the early evening of November 8, 1948, on which day the indictment charged that both crimes were committed. The proof of the offense charged in the third count upon which he was sentenced to prison by the trial court, included, precisely, that charged in the second count. Defendant may not be twice punished for the same criminal act. (Penal Law, § 1938.) Even though the trial court supended sentence as to the assault count a judgment of conviction thereof upon which no punishment may be lawfully imposed should not stand upon the record. (3 Wharton on Criminal Procedure [10th ed.], § 1851.) There was ample evidence to sustain the conviction upon the other count and no prejudicial errors were committed which merit a reversal. Judgment insofar as it convicts defendant of the crime of assault in the second degree is annulled and the count in the indictment charging that crime is dismissed; in all other respects the judgment of conviction is affirmed. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.