Appeal by the People from an order of the Supreme Court, Westchester County, dated November 18, 1977, which, inter alia, (1) granted defendant’s motion for a mistrial and (2) deemed the indictment to be amended so as to charge murder in the second degree. Order modified, on the law, by deleting from the second decretal paragraph thereof all language after the words "is denied”. As so modified, order affirmed. The stay contained in the order to show cause returnable November 22, 1977 is hereby vacated. We hold that the determination of the trial court was erroneous and that the case should proceed to trial under the indictment as originally handed down by the Grand Jury. Cohalan, J. P., Hargett, Damiani and Shapiro, JJ., concur.