a motion to dismiss an indictment, has the power to pass upon another Judge’s order directing resubmission. In dismissing the indictment Mr. Justice Lentol decided that the new evidence presented had no real probative value and since the evidence presented to the second Grand Jury was no stronger than that presented to the first, the indictment had to be dismissed. Alternatively, he held that the indictment had to be dismissed because the additional evidence submitted by the People was not "newly discovered evidence”. Both witnesses and the "new” evidence in question were always available to the People and could have been brought before the first Grand Jury had the District Attorney exercised due diligence. We disagree with Criminal Term and hold that this indictment should not have been dismissed on either ground. CPL 190.75 provides: "1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
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* 3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.” These subdivisions protect a potential defendant by preventing the District Attorney from resubmitting a matter more than once and by requiring him to obtain permission from the court to resubmit. At common law, an order of the court permitting resubmission of a charge was unnecessary and a prosecutor was free to resubmit as often as he chose. Under section 270 of the Code of Criminal Procedure, the forerunner of CPL 190.75 (subd 3), the prosecutor was required to obtain permission from the court to resubmit, but with permission he could resubmit as often as he was allowed. (See
People ex rel. Flinn v Barr, 259 NY 104 .) It may be argued that the present strict limit imposed by the CPL on the number of resubmissions reduces the potential for prosecutorial abuse to a level at which close scrutiny is unnecessary. We do not agree. Had the Legislature deemed judicial scrutiny unnecessary, it could have eliminated it entirely. That the prosecutor is still required to make an application to the court shows that his dissatisfaction with the first Grand Jury’s action is not in itself sufficient reason to permit resubmission (cf.
People v
Neidhart, 35 Mise 191;
People v Groh, 97 Mise 2d 894). The court’s role is not purely ministerial because the case may not again be submitted "unless the court in its discretion authorizes or directs the people to resubmit” (CPL 195.75, subd 3). A Judge, deliberating upon a motion to dismiss an indictment handed up by the second Grand Jury, should be permitted to determine whether the prosecutor has, in fact, presented the promised new evidence. If, upon comparing the minutes of the evidence presented to the two Grand Juries, the court determines that the People have failed to present the evidence proffered in the application to resubmit and that the second Grand Jury was presented with substantially the same evidence as that given to the first, it may dismiss the indictment in the furtherance of justice (CPL 210.40; see, also,
People v Clayton, 41 AD2d 204 ). The court erred in finding that no additional evidence was presented to the second Grand Jury. Not only did the People produce the testimony it promised to produce in its application to resubmit, but a comparison of the minutes of the proceedings before the two Grand Juries