Judgment of the Court of General Sessions, New York County, rendered on December 11, 1961, convicting defendant after trial before a jury of two counts of feloniously selling a narcotic drug and sentencing him to serve a minimum of 7% years and a maximum of 10 years in State prison on each of said counts, the sentences to run consecutively, unanimously modified, on the facts, the law and in the exercise of discretion to the extent that the sentences will run concurrently instead of consecutively, and the judgment is otherwise affirmed.
Some of the questions addressed to witnesses by the Trial Judge and some of the observations he made, while motivated by an evident desire to enlighten the jury and not to prejudice the defendant, were unfortunate and unnecessary; but they could not substantially have affected the outcome of the trial. The sentence imposed, however, was excessive, inasmuch as the evidence upon the trial and a reading of the probation report indicate that defendant was a small-scale seller of narcotics and that he had no previous record of arrest or conviction upon a narcotics charge. Concur — Botein, P.
J., Breitel, McNally, Stevens and Steuer, JJ.