The People of the State of New York, Respondent, v. John Reilly, Appellant

The People of the State of New York, Respondent, v. John Reilly, Appellant. [MAJORITY] Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Queens, convicting him of violations of sections 1140 and 483 of the Penal Law, and from an order of. the same court denying his motion to set aside the conviction and for a new trial. Judgment and order reversed on the law and new trial ordered. During the course of the trial, one of the three Trial Justices remarked that the court was not “ trying a case of alleged intent ”. In that respect the Trial Justice was in error. (People v. Ulman, 258 App. Div. 262; People v. Steele, 275 App. Div. 1050.) Although the record does not disclose that the other two Trial Justices were of the same opinion, in view of the sharp question of fact presented in this ease, it is our opinion that a new trial should be ordered in the interests of justice. Adel, Wenzel, MacCrate and Beldock, JJ., concur; Nolan, P. J., dissents and votes to affirm.