
    The People of the State of New York, Respondent, v. Hyman E. Mintz, Appellant.
    Argued May 23, 1967;
    decided July 7, 1967.
    
      George H. Rosen and Robert M. Rosen for appellant.
    
      Frank S. Hogan, District Attorney (Robert B. Sperling and Michael Juviler of counsel), for respondent.
    
      Carl J. Silverstein for Sullivan County Bar Association, amicus curiae.
    
   Appeal dismissed in the following memorandum: The' Appellate Division correctly dismissed an appeal by the above-named defendant-appellant from his conviction in New York County of the crime of conspiracy, by reason of his death pending appeal to that court. The appeal to this court from the Appellate Division’s order should likewise be dismissed for the reason that the entire criminal prosecution has abated by reason of his death (see cases cited .at 83 ALB 2d 864-872 and in 6 ALB 2d Later Case Service, p. 538). If affirmed, the judgment of conviction could not be enforced and, if-reversed, there is no person to try. Therefore, the appeal should not be heard but, since it cannot be heard, it can never be determined whether the judgment of conviction would stand, and this requires that the judgment of conviction be vacated. This should be done by the trial court on its own motion or on application by the District Attorney or on application by the attorneys who appeared for the defendant. [See 20 N Y 2d 770.]  