
16 N.Y.2d 984 (1965)
The People of the State of New York, Respondent,
v.
Francis Birmingham, Appellant.
Court of Appeals of the State of New York.
Argued September 20, 1965.
Decided October 28, 1965.
David I. Goldblatt and Anthony F. Marra for appellant.
John M. Braisted, Jr., District Attorney (Pasquale E. Di Vernieri of counsel), for respondent.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE and BERGAN. Judges DYE and SCILEPPI dissent and vote to affirm. (See People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Erickson, 302 N.Y. 461; cf. People v. Di Lapo, 14 N Y 2d 170.) The consecutive sentence was permissible under section 1938 of the Penal Law.
Judgment modified and matter remitted to the Supreme Court, Richmond County, so as to provide for the imposition of a sentence to run concurrently instead of consecutively and, as so modified, affirmed. (Penal Law, § 1938.) No opinion.
