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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Appellant, v. Hector GONZALEZ-RODRIGUEZ, Respondent.

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Howard R. Relin by Elizabeth Clifford, Rochester, for Appellant.

The People appeal from an order dismissing a superseding indictment, No. 828/94.   That indictment had been filed while there was a pending motion to dismiss the superseded indictment, No. 768/94, on the ground that it had been obtained in violation of defendant's right to testify before the Grand Jury. County Court held that, upon dismissal of the first indictment, the People were required to obtain leave to present the matter to a new Grand Jury, but failed to do so.

 County Court erred in dismissing the superseding indictment.   Pursuant to CPL 200.80, the People are authorized, even without leave of court, to obtain a new indictment to supersede a pending indictment, and may do so during the pendency of a motion to dismiss the first indictment (see, People v. Cade, 74 N.Y.2d 410, 416-417, 548 N.Y.S.2d 137, 547 N.E.2d 339, citing People v. Leyra, 1 N.Y.2d 199, 202-203, 151 N.Y.S.2d 658, 134 N.E.2d 475;  see also, Matter of De Canzio v. Kennedy, 67 A.D.2d 111, 119-120, 415 N.Y.S.2d 513, lv. denied 47 N.Y.2d 709, 419 N.Y.S.2d 1025, 393 N.E.2d 491;  Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 200.80).

 Upon defendant's arraignment on the superseding indictment, the first indictment was automatically dismissed because the second indictment was identical to the first and thus superseded every count of the first.   There was, therefore, no need for the People to seek leave to re-present.   In such circumstances, “no subsequent ruling on that motion [to dismiss the first indictment] will affect the validity of the superceding [sic] indictment” (Preiser, Practice Commentaries, supra, citing People v. Cade, supra, at 416-417, 548 N.Y.S.2d 137, 547 N.E.2d 339).   We thus reverse the order, deny the motion, reinstate indictment No. 828/94 and remit the matter to Monroe County Court for further proceedings on that indictment.

Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Monroe County Court for further proceedings on the indictment.


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