Judgment unanimously modified by reversing the verdict of guilt on the third count of the indictment and by dismissing said count, and otherwise affirmed.
There was a technical failure of proof that the communication was conveyed out of the penitentiary "without the consent of the * * * warden", an element of the crime. (Penal Law, § 1691, subd. 1.) Since, however, defendant was sentenced solely on the felony, dismissal of the third count does not and should...
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