The opinion
Capozzoli, J.
We are unanimous in holding that the appeal should be dismissed for the cogent reasons expressed in the opinion of Mr. Justice Nunez.
However, we do not agree with Mr. Justice Nunez that the trial court was correct in dismissing the indictment. In view of our disposition of the appeal, there is no need to pass upon the propriety of the action of the trial court in dismissing the indictment. If the appeal were not being dismissed, we would reverse. We believe the evidence was sufficient to spell out a prima facie case of bribery, as defined in section 200.00 of the Penal Law, and the motion to dismiss at the conclusion of the People’s case should have been denied.
We read the section as making criminal the offer by a defendant to bribe a public servant. The Practice Commentary (McKinney’s Cons. Laws of N.Y., Book 39) to section 200.00 of the Penal Law in part reads: "It is substantially a restatement of the former law. Section 200.00 is directed at the bribe giver: a person who confers, or offers * * * to confer * * *. The gist of the crime of bribery is the effort to secure an impermissible advantage in the decision-making process of government.” (Emphasis in original.) In this connection it is noteworthy that, under the former Penal Law, a bribery conviction on similar facts to those in the case at bar was affirmed. (People v Chapman, 13 NY2d 97 .) Since the dismissal of the indictment is not properly before us, we take no action with reference to same.
However, as above stated, the appeal of the People is unanimously dismissed.