Opinion
October 4, 1955.
Judgment unanimously modified by reversing the verdict of guilt on the third count of the indictment and by dismissing said count, and otherwise affirmed. There was a technical failure of proof that the communication was conveyed out of the penitentiary "without the consent of the * * * warden", an element of the crime. (Penal Law, § 1691, subd. 1.) Since, however, defendant was sentenced solely on the felony, dismissal of the third count does not and should not otherwise affect the judgment of conviction. ( People v. Sogliuzzo, 268 App. Div. 899; People v. Mangano, 269 App. Div. 954, affd. 296 N.Y. 1011.)
Concur — Peck, P.J., Cohn, Breitel, Bastow and Cox, JJ. [ 206 Misc. 704.]