People v. Josie

• Decision Date: 04 October 1955
• Citation: People v. Josie, 144 N.Y.S.2d 437, 286 A.D. 995 (N.Y. Sup. Ct. 1955)
• Parties: The PEOPLE of the State of New York, Respondent, v. Albert JOSIE, Defendant-Appellant.
• Court: New York Supreme Court

Page 437

144 N.Y.S.2d 437

286 A.D. 995

The PEOPLE of the State of New York, Respondent, v. Albert JOSIE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 4, 1955.

H. S. Siegel, Brooklyn, for defendant-appellant.

W. E. Dillon, New York City, for respondent.

Before PECK, P. J., and COHN, BREITEL, BASTOW and COX, JJ.

PER CURIAM.

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, 51 N.Y.S.2d 163; People v. Mangano, 269 App.Div. 954, 57 N.Y.S.2d 891, affirmed People of State of New York v. Mignogna, 296 N.Y. 1011, 73 N.E.2d 583.

Order filed.