
    The People of the State of New York, Respondent, v. Homer Slade, Appellant.
    County Court, Wayne County,
    March 4, 1957.
    
      Erwin N. Witt for appellant.
    
      Roger E. Davis, District Attorney (Maurice E. Strobridge of counsel), for respondent.
   James D. Hurley, J.

This is an appeal from a conviction in Police Court in the Village of Wolcott, New York, convicting the defendant of a charge of driving while intoxicated in violation of subdivision 5 of section 70 of the Vehicle and Traffic Law.

The issue was sharply contested in a trial before the Police Justice without a jury.

It was stipulated by counsel that the testimony of the trial be taken on a tape recorder. As a result, the trial Justice made few, if any, notes of the testimony. It developed that for some unexplained reason, the tape recorder failed to record part of the cross-examination of one of the People’s witnesses, and all of the testimony of two of the defendant’s witnesses,

Since the record is admittedly incomplete, and fails to state sufficiently the evidence upon which the defendant was convicted, and it appears that a further return cannot correct the defect, the judgment of conviction must be reversed and a new trial ordered. (Code Crim. Pro., §§ 756, 764; People v. Slater, 176 Misc. 641.)

This reversal is upon the law alone, since this court feels that the questions of fact raised cannot properly be passed upon in the present state of the record. (Code Grim. Pro., § 543-a.)

Submit order in accordance herewith.  