
    The People of the State of New York, Appellant, v. Walter Wagner, Respondent.
    Argued February 2, 1965;
    decided February 11, 1965.
    
      
      Robert H. Ecker, District Attorney, for appellant.
    
      David B. Alford for respondent.
    
      Louis J. Lefkowitz, Attorney-General (Walter J. Hogan and Paxton Blair of counsel), amicus curiœ.
    
   Order affirmed. This dismissal for failure to prosecute was, on the particular facts, valid as an exercise of discretion (see People v. Alfonso, 6 N Y 2d 225). We pass on no other question. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Van Voorhis and Bbegan. Judges Fold, Burke and Scileppi dissent and vote to reverse and to reinstate the judgment of conviction.  