
    The People of the State of New York, Appellant, v. John E. Pardee, Respondent.
   The respondent was indicted for violation of subdivision 5 of section 70 of the Vehicle and Traffic Law as a felony, the indictment alleging that on March 4, 1950, he operated a motor vehicle in Westchester County while he was “ in an intoxicated condition ” and that such operation was after he had been convicted by a plea of guilty in Connecticut of the crime of operating a motor vehicle “while under the influence of intoxicating liquor”. On respondent’s motion the indictment was dismissed, on the ground that the felony indictment of respondent under subdivision 5 of section 70 of the Vehicle and Traffic Law could not be based upon his previous conviction in the State of Connecticut of operating a motor vehicle "while under the influence of intoxicating liquor”. The People appeal from the order of the County Court, Westchester County, dismissing the indictment. Order affirmed. No opinion. Nolan, P. J., Carswell and MaeCrate, JJ., concur; Adel and Schmidt, JJ., dissent and vote to reverse the order and to deny the motion, with the following memorandum: Under subdivision 5 of section 70 of the Vehicle and Traffic Law, which is similar in design to section 408 and subdivision 5 of section 1897 of the Penal Law, it is not essential that the prior conviction be had within the State of New York. Whether the crime of which respondent pleaded guilty in Connecticut is the same or is described in subdivision 5 of section 70 of the Vehicle and Traffic Law is to be determined at the trial. (See State v. Andrews, 108 Conn. 209.) In any event the indictment charges but one crime, the grade of which may be proved. (People v. Reilly, 49 App. Div. 218, 222-223.) [202 Misc. 238.]  