It would seem, therefore, that the negativing of the exception should have been an integral part of the information and the proof on the trial herein. The rule enunciated in People v. Smith ( supra) has been followed consistently by the courts ( People v. Algie, 14 Misc.2d 619; People v. Gross, 130 N.Y.S.2d 282; People v. Palumbo, 130 N.Y.S.2d 583; People v. Martin, 129 N.Y.S.2d 888 [LIDDLE, J.]; People v. Cappiello, 133 N.Y.S.2d 649 [SHERMAN, J.]). Following the logic and ruling of this Court of Appeals decision, this court concludes that the information herein is fatally defective and the proof insufficient to sustain the judgment of conviction herein.