¶1(dissenting in part). I respectfully dissent in part. We are faced with reviewing a record in a criminal case involving charges of murder and robbery, among others, where both the People and defendant seek to avoid consequences of having sought and obtained certain relief. The majority takes the position that the initial relief sought and obtained by the People, on a motion in which defendant joined, i.e., dismissal of the original indictment by County Court (Burke, J.), was a nullity and thus that the first indictment in fact remained valid. I agree with the majority that leave to resubmit under CPL 210.20 (4) was improperly granted by County Court (Elliott, J.) both because the motion for dismissal was not on a ground for which re-presentment is authorized under that section and *955because the People made the motion for dismissal (see, People v Strudwick, 178 AD2d 947, lv denied 80 NY2d 839).
¶2The majority premises its analysis on the conclusion that Supreme Court (Brunetti, J.) acted properly in reinstating the first indictment, because the dismissal violated the principle articulated in People v Douglass (60 NY2d 194) and the Judge who dismissed the first indictment acted in excess of his authority. I agree with the majority that the fact that the People were not prepared to proceed to trial did not authorize County Court to dismiss the indictment (see, CPL 210.20). It does not follow, however, that a Judge of coordinate jurisdiction was authorized to correct the error. In my view, the Supreme Court Justice who reinstated the first indictment acted in excess of his authority because the dismissal was the law of the case (see, People v Bradley, 247 AD2d 929, lv denied 91 NY2d 940). We held in People v Broome (151 AD2d 995) that a Judge is bound by the prior determination of a Judge of coordinate jurisdiction that identification testimony could not be used at trial; a fortiori, a Judge is bound by the prior determination of a Judge of coordinate jurisdiction to dismiss an indictment.
¶3I also note that, because the People sought dismissal and defendant joined in the motion, neither party can argue that it is aggrieved by the dismissal nor could either have appealed from the order of dismissal. The majority avoids that problem by analogizing these facts to those in People ex rel. Battista v Christian (249 NY 314) and relying on language therein that “[c]onsent cannot give a court jurisdiction or authorize a substantial change in its fundamental mode of proceeding” (People ex rel. Battista v Christian, supra, at 320). Battista involved a conflict between the requirement in the New York Constitution that prosecution for an infamous crime be based on indictment and a statute permitting a person to plead guilty to an information, and the Court held that the Constitution prevails. No question of jurisdiction or fundamental mode of proceeding is present here, however.
¶4I conclude based on the doctrine of law of the case that the first indictment could not be reinstated by a different Judge and that the second indictment was invalid to the extent that it involved improper re-presentment of charges in the first indictment. I agree with the majority with respect to the remaining issues. I therefore would modify the judgment by granting in part defendant’s motion and dismissing counts one, two, three and six of the second indictment. The remaining counts are valid because they are new charges upon which the *956People were free to obtain an indictment without seeking permission, and I would affirm the judgment of conviction with respect to those counts. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Murder, 2nd Degree.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.