The Appellate Division in reversing the judgment of conviction and granting a new trial states that the reversal is upon the law, but says nothing about the facts. We said in People v.Redmond (225 N.Y. 206) that this court has no jurisdiction to review such an order of the Appellate Division unless it appears affirmatively
in the body of the order that the court below has exercised its power to review the facts and, that being satisfied with the judgment in that respect, the reversal is ordered for error of law only. This court also stated in that opinion that the Appellate Division should give heed to this rule and in justice to the People as well as to the defendant should review the facts. That court only performs part of its duty when it passes upon the law only. It is equally requisite under our practice for it to pass upon the facts and state its conclusion.
For the reasons stated in the Redmond case the motion to dismiss the appeal must be granted without prejudice to an application by the District Attorney for appropriate relief at the Appellate Division.