People v. Clark , 248 A.D. 639 ( 1936 )

Judgment of the Court of Special Sessions of the City of New York, Borough of Queens, convicting the defendant of the crime of bookmaking in violation of section 986 of the Penal Law, reversed on the law, information dismissed, and defendant discharged from custody. The information charges the defendant with having committed the offense at various race tracks in the borough and county of Queens, whereas the proof tended to show that the acts alleged in the information took place, not at a race track, but at Thirty-second street and Ditmars avenue, Queens county. The variance between the information and the proof is fatal. Hagarty, Johnston and Adel, JJ., concur; Lazansky, P. J., and Young, J., dissent and vote to affirm upon the ground that the proof showed that the defendant was guilty of bookmaking outside of a race track. No motion was made with reference to the variance, which was immaterial.