March 29, 1993
Appeal from the County Court, Orange County (Berry, J.).
Ordered that the appeal from the order dated July 28, 1992, is dismissed, as that order was superseded by the order dated September 14, 1992, made upon reargument; it is further,
Ordered that the order dated September 14, 1992, is reversed insofar as appealed from, so much of the order dated July 28, 1992, as granted that branch of the defendant's omnibus motion which was to dismiss the first two counts of the indictment is vacated, that branch of the defendant's omnibus motion is denied, those counts of the indictment are reinstated, and the matter is remitted to the County Court, Orange County, for further proceedings consistent herewith.
We agree with the People that the County Court erred in dismissing the first two counts of the indictment, which charged the defendant with attempted rape in the first degree (see, e.g., People v. Acosta, 80 N.Y.2d 665; People v. Wheeler, 109 A.D.2d 169, affd 67 N.Y.2d 960; People v. Glover, 107 A.D.2d 821, affd 66 N.Y.2d 931; People v. Pereau, 99 A.D.2d 591, affd 64 N.Y.2d 1055; People v. Haims, 171 A.D.2d 878). The defendant's alternative argument for affirmance is not reviewable at this point (see, People v. Karp, 76 N.Y.2d 1006; People v. Goodfriend, 64 N.Y.2d 695, 698), and is meritless in any event (see, e.g., People v Mitchell, 183 A.D.2d 503; People v. Smalls, 111 A.D.2d 38). Whether proper application of the rule announced in People v. Moquin ( 77 N.Y.2d 449) will preclude further prosecution of the two counts of the indictment which are hereby reinstated cannot be determined on the present record. For this reason, among others, we reject the defendant's argument that the present appeal should be dismissed as academic. Bracken, J.P., Balletta, Eiber and Santucci, JJ., concur.