
    The People of the State of New York, Appellant, v. Pedro Beltrand, Respondent, and Louis J. Lefkowitz, Attorney-General of the State of New York, Intervener-Appellant.
    Supreme Court, Appellate Term, First Department,
    July 8, 1971.
    
      Frank S. Hogan, District Attorney (Michael R. Juviler and Herman Kaufman of counsel), for appellant. Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Robert 8. Hammer of counsel), for intervenor-appellant. Robert Kasanof and Stanley Neustadter for respondent.
   Per Curiam.

There was no proof, on the preliminary hearing, of loitering by defendant for any appreciable period of time. Hence, the testimony was insufficient factually to establish the conjunctive elements of subdivision 6 of section 240.35 of the Penal Law. It is therefore unnecessary to deal with defendant’s argument that the statute is unconstitutional (People v. Schanbarger, 24 N Y 2d 288; Rescue Army v. Municipal Ct., 331 U. S. 549, 569).

The order should be affirmed.

Concur — Lupiaho, J. P., Markowitz and Gold, JJ.

Order affirmed.  