¶1Order affirmed. Memorandum: The Trial Judge, although not empowered to set aside or modify the verdict in the interest of justice, was authorized, nonetheless, to entertain and determine at any time before sentence a motion to dismiss the indictment in furtherance of justice pursuant to CPL 210.40 (see, CPL 255.20 [3]). We find no abuse of discretion here by the grant of the postverdict motion to dismiss the indictment for criminal mischief in the third degree.
¶2All concur, except Callahan, J. P., who dissents and votes to reverse and deny the motion, in the following memorandum.