(dissenting). The power of our government is divided into three departments: executive, legislative, judicial. With the judicial department lies the decision of the guilt or innocence of one accused; with the executive power lies the expression of clemency after punishment has been decreed for the guilty one. The maj ority of the court holds herein that the exercise of clemency based on a finding of innocence by the executive is sufficient to relieve the appellant of his first conviction and its consequences. I believe that such conclusion leads to the invasion by the executive of the duties and powers of the judiciary. We should hold that the first conviction stands despite the pardon until the appellant is relieved of the same by judicial action. It may be argued that this is for the appellant a harsh application of the law but if he is right in his contention that he was innocent of the charge on which he *499was convicted in Federal court then he has means of asking relief from his present sentence. One means is the exercise of executive clemency by the Governor; another is remedial legislation which would provide that a pardon with a finding of innocence by the pardoning power would relieve the individual convicted the second time from the effect of the provisions of section 1941 of the Penal Law or similar penal provision; a third, application to the court in which the first conviction was had for setting aside on the ground of injustice of the conviction and dismissal of the charge.
Order modified, without costs, and matter remitted to the Court of General Sessions of the County of New York and relator remanded for resentence in accordance with the opinion.