People v. Warner

Heffernan, J. (dissenting).

I dissent from the views of the majority and vote to reverse the judgment of conviction and dismiss the indictment.

Appellant was indicted and convicted as a second offender while operating a motor vehicle in an intoxicated condition. Under the provisions of subdivision 5 of section 70 of the Vehicle and Traffic Law operating a motor vehicle in an intoxicated condition is a misdemeanor. A second or subsequent conviction for such an offense constitutes a felony.

On the trial it appeared that appellant was convicted as a first offender on September 25, 1927, which was…