Opinion
November 9, 1998
Appeal from the County Court, Suffolk County, (Vaughn, J.).
Ordered that the appeals from so much of the orders dated October 2, 1997, as denied reargument are dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the orders dated October 2, 1997, are affirmed insofar as reviewed.
The People's contention that the counts in the second indictment were not directly derived from the counts in the felony complaints is without merit. The counts in both of the felony complaints and in the second indictment were based upon conduct which is comprised of several groups of acts "so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident" (CPL 40.10 [a]; see also, People ex rel. Greenstein v. Sheriff of Schenectady County, 220 A.D.2d 190; People v. Ramkisson, 114 Misc.2d 535; People v. Boggio, 110 Misc.2d 317). Therefore, the second indictment related back to the date the felony complaints were filed for the purposes of applying the six-month speedy trial limitation prescribed by CPL 30.30 (1) (a).
The People's further contention that the County Court erred in denying their motion for leave to renew is also without merit. The People did not offer a valid excuse for failing to submit available facts in response to the defendants' original motion to dismiss the indictment ( see, Foley v. Roche, 68 A.D.2d 558). Moreover, a remedy is not available where, as here, "a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application" ( Foley v. Roche, supra, at 568).
We need not reach the People's remaining contention in light of our determination.
Sullivan, J. P., Altman, Friedmann and McGinity, JJ., concur.