Opinion
June 6, 1966
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered October 1, 1965, convicting him of (1) criminal negligence in the operation of a motor vehicle resulting in death (first count) (2) operating a motor vehicle while intoxicated (second count) and (3) reckless driving (third count), upon a jury verdict, and imposing sentence on the first count to the reformatory (Correction Law, art. 3-A); sentence on the remaining two counts was suspended. Judgment modified, on the law, (1) by striking out so much thereof as convicted defendant of reckless driving and (2) by substituting therefor a provision dismissing the third count in the indictment. As so modified, judgment affirmed. The findings of fact implicit in the verdict are affirmed. Since the first and third counts were based on the same inseparable acts as shown by the proof, the conviction under the third count constituted double jeopardy (Penal Law, § 1939; Matter of Martinis v. Supreme Ct., 15 N.Y.2d 240). Beldock, P.J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.