Majority
Judgment of the Court of Special Sessions, City of New York, Borough of Brooklyn, convicting defendant of delivery of a deficient quantity of a commodity and a violation of section 188 of the Agriculture and Markets Law, unanimously affirmed. The evidence established a delivery following the misrepresentation as to the weight of the commodity. Section 188 of the Agriculture and Markets Law does not require that the potential customer be in fact actually defrauded. In this respect it differs from section 2411 of the Penal Law. The principle of Peoplev. Visconti ( 234 N. Y. 165 ) is controlling, and in so far as People v. Goldberg ( 146 App. Div. 950 ) is to the contrary, the latter ease may not be followed. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.