Opinion
February 17, 1966
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Henry and Del Vecchio, JJ.
Judgment unanimously reversed and indictment dismissed. Memorandum: Following argument and submission of this appeal an intermediate order denying a motion to suppress certain evidence was reversed and that pretrial proceeding remanded to Erie County Court ( 23 A.D.2d 806). Thereafter, an order was made by County Court suppressing the evidence upon a finding that the search warrant was invalid. The court is informed by the District Attorney that he does not seek a review of the correctness of that determination. He further concedes that in the absence of the suppressed evidence a new trial would be futile.