PEOPLE v. BIRMINGHAM

Judgment modified and matter remitted to the Supreme Court, Richmond County, so as to provide for the imposition of a sentence to run concurrently instead of consecutively and, as so modified, affirmed. (Penal Law, § 1938.) No opinion.

Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE and BERGAN. Judges DYE and SCILEPPI dissent and vote to affirm. (See People ex rel. Maurer v. Jackson, 2 N.Y.2d 259; People v. Erickson, 302 N.Y. 461; cf. People v. Di Lapo, 14 N.Y.2d 170. ) The consecutive sentence was permissible under section 1938 of the Penal Law.