It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendant's motion in part and reinstating the first count of the indictment and as modified the order is affirmed and the matter is remitted to Supreme Court, Erie County, for further proceedings on the first count of the indictment.
Memorandum:
On appeal from an order granting the motion of defendant to dismiss the indictment charging...
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