
    The People of the State of New York, Appellant, v Stratton H. Todd, Respondent.
    Argued October 17, 1975;
    decided December 2, 1975
    
      Malcolm C. Hughes, District Attorney, for appellant.
    
      
      Terence P. O’Leary for respondent.
   Memorandum. Order reversed. The People failed to establish that the breathalyzer apparatus had been timely calibrated; hence, the results of the breath test were inadmissible. It was incumbent upon the District Attorney to show that the machine was in proper working order. We conclude, however, that the County Judge erred in holding that there was insufficient evidence to support a conviction for the crime of driving while intoxicated (Vehicle and Traffic Law, § 1192, subd 3) as a matter of law. Accordingly, we remit to the County Court, Delaware County, for a determination of the facts pursuant to CPL 470.40 (subd 2, par [b]).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed and case remitted to County Court, Delaware County, for further proceedings in accordance with the memorandum herein.  