Opinion
April 2, 1984
Appeal by the People from an order of the Supreme Court, Kings County (Starkey, J., on the decision; Yoswein, J., on the order), entered October 6, 1982, which vacated a prior judgment of the same court convicting defendant, upon a jury verdict, of criminal possession of a controlled substance in the fifth degree, and ordered a new trial. ¶ Order affirmed. ¶ In affirming the order vacating the judgment of conviction because the People's contentions lack merit, we do not reach defendant's argument that the indictment should be dismissed. Whether the indictment should be dismissed is not reviewable on this appeal because defendant is not an appealing party and no appeal lies from an intermediate order denying dismissal of an indictment. The propriety of the failure to dismiss may only be reviewed on appeal from a judgment of conviction (CPL 450.10; People ex rel. McLaughlin v Monroe, 44 A.D.2d 575). Titone, J.P., Lazer, Thompson and O'Connor, JJ., concur.