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

The PEOPLE, etc., Respondent, v. Alfred WRIGHT, Appellant.

Decided: October 27, 1997

Before COPERTINO, J.P., and SULLIVAN, FRIEDMANN and LUCIANO, JJ. Diarmuid White and Brendan White, New York City, for appellant (one brief filed). Michael E. Bongiorno, District Attorney, New City (Lisa B. Cohen, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered April 23, 1996, convicting him of promoting gambling in the first degree (four counts), possession of gambling records in the first degree, and possession of a gambling device, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction of possession of a gambling device, vacating the sentence imposed thereon and dismissing that count of the indictment with leave to the District Attorney to seek an order permitting resubmission of the charge to another Grand Jury;  as so modified, the judgment is affirmed.

 We agree with the defendant that the prosecution's withdrawal of the count of possession of a gambling device from the Grand Jury, after it had essentially completed presenting its case with regard to said count, was the equivalent of a dismissal and leave of a court was required before resubmission of that count to a second Grand Jury (see, People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542;  People v. Hemstreet, 234 A.D.2d 609, 652 N.Y.S.2d 60).   Therefore, the conviction of that count must be reversed and the count dismissed, with leave to the District Attorney to apply to the County Court, Rockland County, for an order permitting resubmission of the count to another Grand Jury (see, People v. Wilkins, supra;  People v. Hemstreet, supra).

We find no merit to the defendant's contention that the Supreme Court erred in refusing to submit the issue of territorial jurisdiction to the jury.   Under the circumstances of this case, territorial jurisdiction was not in issue (cf., People v. McLaughlin, 80 N.Y.2d 466, 591 N.Y.S.2d 966, 606 N.E.2d 1357).


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