
    (September 23, 1974)
    The People of the State of New York, Appellant, v. Harold O’Neill, Respondent.
   On the court’s own motion, its decision and order herein, both dated July 29, 1974, are recalled and vacated and a new decision is rendered as follows: Appeal by the People from a trial order of the County Court, Westchester County, made on May 14, 1972, which dismissed the second count of the indictment. Appeal dismissed. The second count of the indictment was dismissed during the trial upon defendant’s application. After that dismissal, the jury was unable to agree upon a verdict as to the remaining first count. The court thereupon discharged the jury. GPL 310.60 provides that upon a retrial in such ease 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. Shapiro, Acting P. J., Cohalan, Brennan, Benjamin and Munder, JJ., concur.  