
    In the Matter of Darlan Rogers, Petitioner, v Sheldon Greenberg et al., Respondents.
   Proceeding pursuant to CPLR article 78 to prohibit the respondents from proceeding with the prosecution of Kings County indictment No. 2147/85 against the petitioner.

Adjudged that the proceeding is dismissed, without costs or disbursements.

The petitioner claims that the People failed to file a timely notice of appeal (see, People v Coaye, 68 NY2d 857) to this court from an order of the Supreme Court, Kings County (Finnegan, J.), entered May 26, 1987, which granted his motion to dismiss indictment No. 2147/85. Therefore, he asserts that despite this court’s reversal of that order (see, People v Rogers, 141 AD2d 870), the respondents lack jurisdiction to prosecute him on that indictment. The petitioner should have proceeded by way of motion in this court to vacate the decision and order in People v Rogers (supra). However, since the issue has been presented to us, albeit in an improper form, we consider it on the merits, and reject it. The facts alleged by the petitioner do not support a conclusion that the trial court improperly redated its order for the sole purpose of extending the People’s time to file a notice of appeal (cf., People v Baez, 49 AD2d 863). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

36  