Opinion
October 16, 1967
Motion by appellant's assigned counsel for reargument of appeal from judgment of the Supreme Court, Queens County, rendered April 15, 1966, which was affirmed by order of this court dated July 10, 1967 ( People v. Tong, 28 A.D.2d 959). Motion denied. On the court's own motion, order dated July 10, 1967 vacated; appeal dismissed; and action remanded to the Supreme Court, Queens County, for the purpose of vacating the judgment. It appears that on February 23, 1967, while the appeal was pending and before it was argued on May 26, 1967, appellant died. Upon the death the entire criminal prosecution abated, the appeal should have been dismissed and the judgment vacated ( People v. Mintz, 20 N.Y.2d 753). Rabin, Acting P.J., Hopkins, Benjamin and Munder, JJ., concur.