People v. Hartigan , 90 A.D.2d 506 ( 1982 )

Appeal by the People from an order of the Supreme Court, Queens County (Tsoucalas, J.), dated September 29, 1980, which granted defendant’s motion to dismiss an indictment charging him with assault in the first degree. Order reversed, on the law, motion denied and the indictment is reinstated. Although the Justice at Criminal Term was correct that he could not reverse a prior order of a Justice of co-ordinate jurisdiction, which order dismissed an earlier indictment against defendant with leave to resubmit, the prior order is not binding on this court as law of the case (see Wilson v McCarthy, 53 AD2d 860). That order was incorrectly made because the evidence before the Grand Jury did not warrant the instructions which the court held should have been given. Accordingly, the indictment is reinstated. We further note that the better practice would have been for the District Attorney to have appealed from the original order. Damiani, J. P., Titone, Thompson and Bracken, JJ., concur.