Judgment reversed and matter remitted to the County Court, Dutchess County, for further proceedings in accordance with the memorandum herein: The counts of the indictment, numbered 2, 3, 5 and 6, charging commission of crime on January 8, 1960, dismissed upon the ground that the evidence does not establish defendant's guilt of such crimes beyond a reasonable doubt; as to the remaining counts of the indictment, numbered 8, 9, 11 and 12, charging commission of crimes on January 10, 1960, a new trial is ordered upon the ground that prejudicial error was committed by the trial court in failing adequately to apprise the jury that the pretrial statement of the witness Fetzer could not be considered or relied upon as evidence of defendant's guilt. (See People v. Freeman, 9 N.Y.2d 600, 605; People v. Ferraro, 293 N.Y. 51, 56.) No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER.