People v. Lemmons

Fuchsberg, J.

(concurring in part and dissenting in part). For the reasons stated in Judge Wachtler’s concurring opinion, my vote is also for modification. However, in view of the fact that, despite a full trial, there appears to have been no evidence of control of the guns developed other than that set forth in the several opinions on this appeal, the appropriate corrective action should be dismissal for legal insufficiency of trial evidence (CPL 470.40, subd 1; 470.20, subd 2; cf. Stubbs v Smith, 533 F2d 64 [Oakes, J.]).

Chief Judge Breitel and Judges Gabrielli and Cooke concur with Judge Jasen; Judge Jones concurs in result in a separate opinion; Judge Wachtler concurs in part and dissents in part and votes to modify and order a new trial as to all defendants except Jane Doe in a separate opinion; Judge Fuchsberg concurs in part and dissents in part and votes to modify and dismiss the indictment as to all defendants except Jane Doe, in another separate opinion.

Order affirmed.