
    The People of the State of New York, Appellant, v. Harold O’Neill, Respondent.
   Appeal by the People from a trial order of the County Court, Westchester County, misdescribed in the notice of appeal as dated-May 7, 1972, which dismissed the second count of the indictment. Appeal dismissed. No such order is printed in the record, and no appeal lies from a decision. Moreover, the People may appeal as of right from a trial order of dismissal only if it has been entered pursuant to CPL 290.10 or 360.40 (ef. CPL 450.20, subd. 2). Here the jury was unable to agree upon a verdict, and the court dismissed it pursuant to CPL 310.60, which provides that upon retrial in such case the indictment is deemed to contain all the counts which it contained at the time the previous trial was commenced, regardless of whether any count was dismissed by the court in the course of such trial. This renders academic the question of whether the trial court did or did not err in dismissing the second count of the indictment during the trial herein. If we were not dismissing the appeal for the reasons indicated, we would dismiss it as academic. Cohalan, Brennan, Benjamin and Munder, JJ., concur; Shapiro, Acting P. J., concurs in result.  