Opinion
Argued March 22, 1961
Decided April 27, 1961
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOHN A. MULLEN, J.
Jacob D. Fuchsberg, Michael P. Direnzo and Leo Pfeffer for appellant.
Frank S. Hogan, District Attorney ( Richard G. Denzer of counsel), for respondent.
Judgment modified in accordance with the memorandum herein and, as so modified, affirmed. The Appellate Division having directed that the penitentiary sentences run concurrently and not consecutively and, as so modified, having affirmed the judgment of the Court of General Sessions, we direct that the judgment be further modified by finding defendant guilty of but one crime ( People v. Riela, 7 N.Y.2d 571). It is clear from the determination of the Appellate Division that the number of crimes of which the defendant was found guilty did not enter into the duration of the sentence imposed. No opinion.
Concur: Judges FROESSEL, VAN VOORHIS, BURKE and FOSTER. Chief Judge DESMOND and Judges DYE and FULD dissent and vote to reverse and to dismiss the indictment upon the ground that, in view of the situation disclosed in Lanza v. New York State Joint Legislative Comm. ( 3 N.Y.2d 92), the questions which defendant refused to answer were not "material and proper" ones within the meaning of section 1330 of the Penal Law.