People v. Tripodi

262 A.D. 939, 29 N.Y.S.2d 384, 1941 N.Y. App. Div. LEXIS 6534

Opinion

Order reversed on the law and matter remitted to Trial Term for imposition of sentence. Memorandum: The disposition below is regarded as being an order made on a motion in arrest of judgment. There was no fatal defect in the indictment and such order in arrest of judgment should not have been granted. The order should be set aside, the verdict of the jury reinstated, and the prisoner remanded to the court below for judgment on the verdict. All concur, except McCurn, J., who dissents and votes for dismissal of the appeal on the ground that' the order appealed from is not appealable. (The order sets aside the verdict of a jury convicting defendant of the crime of bookmaking and grants a new trial with the right to the People to amend the indictment to conform to the facts.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCurn, JJ.