
    The People of the State of New York, Appellant, v. W. Roger Pratt, Respondent.
   Order of November 9, 1960 unanimously reversed, motion denied, and indictment reinstated. Appeal from order of August 17, 1961 dismissed as academic. Memorandum: Upon motion of defendant-respondent the charge against him pending in the court of the Justice of Peace for driving while in an intoxicated condition was ordered to be prosecuted by indictment. Thereafter the Grand Jury indicted defendant for violation of subdivision 5 of section 70 of the Vehicle and Traffic Law. Defendant then moved to dismiss the indictment upon the ground that the Grand Jury was without jurisdiction and Special Term granted his motion and dismissed the indictment. Section 59 of the Code of Criminal Procedure specifically provides that a Court of Special Sessions loses its jurisdiction if before trial a Grand Jury shall present an indictment for the same offense. The validity of the indictment cannot now be challenged by reason of any alleged jurisdiction in the Justice of Peace Court (People ex rel. Hirschberg v. Close, 1 N Y 2d 258, 261). Any proceeding in that court has been superseded by the indictment and it was error to have dismissed it. (Appeal by People from order of Oneida Special Term dismissing the indictment charging defendant with the crime of operating a motor vehicle while in an intoxicated condition. Appeal by People from order denying leave to People to reargue the motion previously granted.) Present — Bastow, J. P., Goldman, McClusky and Henry, JJ. [26 Misc 2d 965.]  