Opinion
June, 1928.
Judgment of conviction of the County Court of Suffolk county reversed upon the law and the facts, and a new trial granted. Defendant was prejudiced by improper allegations and proof with reference to an alleged prior conviction and by erroneous rulings of the court with respect thereto. It is not necessary to the decision of this appeal to pass upon the sufficiency of the indictment. The question might become academic if the People, upon proper evidence, should procure a superseding indictment couched in terms which would be reasonably free from criticism respecting its adequately charging a crime and adequately apprising the defendant of what he is called upon to meet. ( People ex rel. Bullock v. Hayes, 215 N.Y. 172.) Lazansky, P.J., Young, Seeger and Carswell, JJ., concur; Kapper, J., dissents and votes for a dismissal of the indictment because of its insufficiency upon its face.