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The People of the State of New York, Respondent, v. Francis Birmingham, Appellant
*985 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. 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.