People v. Matthews

11 A.D.2d 784, 205 N.Y.S.2d 26, 1960 N.Y. App. Div. LEXIS 8716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1960
• Status: Published

Opinion

Appeal by defendant: (1) from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, entered March 10, 1960, after trial, convicting him of operating a motor vehicle while intoxicated, and sentencing him to serve 60 days (execution of which was suspended), and to pay a fine of $100; and (2) from an order of said court, entered on the same date, denying his motion in arrest of judgment. The fine was paid. Judgment reversed on the law and the facts, information dismissed, and fine remitted. Except for defendant’s alleged admission, made while intoxicated, that he had been driving the motor vehicle, there is no proof in the record that he was the one who, while intoxicated, operated the vehicle. In the absence of additional proof the conviction may not stand (Code Grim. Pro., § 395; People v. Memleb, 4 A D 2d 878). Appeal from order in arrest of judgment dismissed. No such order is contained in the record. In any event, no separate appeal' lies from such an order. Nolan, P. J., Beldock, Christ and Pette, JJ., concur.