In October 1942, the New York Court of Appeals voted four to three to uphold Buchalter's conviction and death sentence. (People v. Buchalter, 289 N.Y. 181) Two dissenting judges thought the evidence was so weak that errors in the jury instructions as to how to evaluate certain testimony were harmful enough to require a new trial. The third dissenter agreed, but added that, in his opinion, there was insufficient evidence to sustain a guilty verdict, so the indictment should be dismissed altogether (failure of proof means no retrial). Buchalter's lawyers now appealed to the U.S. Supreme Court.