Opinion
Submitted September 18, 1967
Decided September 21, 1967
Motion, considered as a motion to clarify the memorandum of the Court of Appeals handed down herein on July 7, 1967, granted and said memorandum amended to read as follows: Appeal dismissed in the following memorandum: The Appellate Division correctly dismissed an appeal by the above-named defendant-appellant from his conviction in New York County of the crime of conspiracy, by reason of his death pending appeal to that court. The appeal to this court from the Appellate Division's order should likewise be dismissed for the reason that the entire criminal prosecution has abated by reason of his death (see cases cited at 83 ALR 2d 864-872 and in 6 ALR 2d Later Case Service, p. 538). If affirmed, the judgment of conviction could not be enforced and, if reversed, there is no person to try. Therefore, the appeal should not be heard but, since it cannot be heard, it can never be determined whether the judgment of conviction would stand, and this requires that the judgment of conviction be vacated and the indictment dismissed. This should be done by the trial court on its own motion or on application by the District Attorney or on application by the attorneys who appeared for the defendant.