First, we must decide whether there was a right of appeal from the County Court order allowing the demurrer as to the first count only. In effect, we answered that question affirmatively in People v. Mullens ( 298 N.Y. 606). Defendant says, correctly, that the only applicable statute is subdivision 1 of section 518 of the Code of Criminal Procedure which allows an appeal by the People "From a judgment for the defendant, on a demurrer to the indictment". That means, says defendant, a judgment sustaining a demurrer to the whole of an indictment.
The defendant possesses a right to challenge the indictment because of an asserted lack of evidence before the grand jury even after reversal and the grant of a new trial. (See, e.g., People v. Mullens, 298 N.Y. 606; People v. Nitzberg, 289 N.Y. 523, 530-531.) Such a reversal does not, however, give the defendant any greater right than that which he had before the first trial.
We only add that we know of no reason why petitioner could not move for dismissal of the original indictment on grounds of insufficiency (see People v. Caminito, 3 N.Y.2d 596), and if dismissal should be ordered, the court has the authority to permit resubmission of the charges to another Grand Jury (CPL 210.20, subd 4). The District Attorney's action in seeking a superseding indictment here was apparently motivated by his belief that Monachino was an accomplice as a matter of law and therefore that Indictment No. 32/1975 was subject to dismissal based upon insufficient evidence before the Grand Jury (see People v Mullens, 298 N.Y. 606; People v. Nitzberg, 289 N.Y. 523, 526). We would point out that, the statements of the County Judge and the belief of the District Attorney on the subject notwithstanding, it is not yet established whether Monachino testified falsely at the murder trial or at the 440 hearing, and on this state of the record the evidence before the first Grand Jury when it rendered Indictment No. 32/1975 was not necessarily insufficient.