Opinion
Argued April 15, 1953
Decided May 29, 1953
Appeal from the Supreme Court, Appellate Division, Third Department, BEST, J.
Nathaniel L. Goldstein, Attorney-General ( Paul W. Williams, Harris B. Steinberg, Peyton H. Moss and Arthur L. Harrow of counsel), for appellant.
James A. Leary, in person, Walter A. Fullerton, William L. Ford and Francis J. Keehan for James A. Leary, respondent.
Orders reversed, motion to dismiss the indictment denied and the indictment reinstated. The record contains legal evidence which, taken together, might, if unexplained or uncontradicted, result in a conviction by the trial jury. Accordingly, the finding of an indictment against defendant was warranted. (Code Crim. Pro., § 258.) The introduction of other evidence, improperly received, does not justify setting aside the indictment (see People v. Glen, 173 N.Y. 395; People v. Sexton, 187 N.Y. 495, 511, 512; People v. Rabinowitz, 277 App. Div. 793, affd. 301 N.Y. 763) particularly when, as here, the asserted errors were not material ones. The other alleged errors have been examined and found not to affect defendant's substantial rights.
The orders should be reversed and the indictment reinstated.
LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Orders reversed, etc.