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 Penal 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 — LUPIANO, J.P., MARKOWITZ and GOLD, JJ.
Order affirmed.