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

The PEOPLE, etc., appellant, v. Rogelio LEWIS, respondent.

Decided: January 31, 2000

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON and SONDRA MILLER, JJ. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Joseph J. McCarthy, Jr., Dianne E. Malone, and David C. Kelly of counsel), for appellant. Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Dennis B. Feld, Lesley M. DeLia, Valdi Licul, and Kim L. Darrow of counsel), for respondent.

Appeal by the People from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 17, 1998, which granted the defendant's motion to dismiss the indictment pursuant to CPL 730.50(3) and (4).

ORDERED that the order is affirmed.

Since the incapacitated defendant has been in the custody of the Commissioner of Mental Hygiene for more than two-thirds of the authorized maximum term of imprisonment for manslaughter in the first degree, the indictment was properly dismissed (see, CPL 730.50[3], [4];  People v. Schaffer, 86 N.Y.2d 460, 634 N.Y.S.2d 22, 657 N.E.2d 1305).


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