Opinion
April 18, 1991
Appeal from the Supreme Court, New York County (Albert Williams, J.).
On the appeal, this court reversed defendant's judgment of conviction due to prejudicial error, and ordered a new trial, while alternatively holding that the evidence was not sufficient to sustain the defendant's conviction of burglary in the second degree (People v. Diaz, 170 A.D.2d 202). As we had dismissed the burglary charge, there is nothing remaining in the indictment to support further prosecution for the lesser included offense of attempted burglary in the second degree under that accusatory instrument (People v. Gonzalez, 61 N.Y.2d 633). We accordingly dismiss the indictment, except as to the possession of burglar's tools count, with leave to represent any appropriate charges to another Grand Jury.
Concur — Murphy, P.J., Sullivan, Carro, Ellerin and Smith, JJ.