An information was filed in the Court of Special Sessions of the City of New York, County of Queens, charging the defendant with the crime of perjury in the second degree. After trial the defendant was convicted. Upon appeal to the Appellate Division there was a reversal upon the law upon the ground that the crime charged was a felony of which the court of Special Sessions had no jurisdiction and the information was dismissed. Under section 543-a of the Code of Criminal Procedure "it shall be presumed, for the purpose of an appeal to the court of appeals, that the appellate division reviewed the facts and was satisfied with the conviction in that respect, and that but for the alleged error of law, it would not have reversed the conviction."
The facts which have been affirmed are: that the defendant made the statements attributed to him at a hearing *Page 418 conducted before the grand jury of the county of Queens, that they were false and were made and sworn to by said defendant willfully and knowingly. (People v. Marino, 271 N.Y. 317;People v. Yannucci, 283 N.Y. 546.)
We decided in People v. Hirsh (283 N.Y. 638), subsequent to the decision below, that the degrees of the crime of perjury were not mutually exclusive, but that the crime of perjury under the amendments of 1935 (L. 1935, ch. 632) and of 1936 (L. 1936, ch. 93) was similar to other crimes which were divided into degrees and that section 444 of the Code of Criminal Procedure was, therefore, applicable thereto.
The Court of Special Sessions, therefore, had jurisdiction of the crime charged against defendant, and the order of the Appellate Division should be reversed and the judgment of the Court of Special Sessions of the City of New York, County of Queens, affirmed.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY and LEWIS, JJ., concur with SEARS, J.; CONWAY, J., dissents in opinion, in which FINCH, J., concurs.
Order affirmed.