In addition to that stated in the court’s opinion, with which I agree, I would make the following observations.
The trial court’s thoughtful and careful opinion (112 Misc 2d 514) setting forth the reasons for vacating the conviction rests ultimately on several unstated assumptions. The first assumption is that a competent defense lawyer would necessarily have been sensitive to the possibility that the Criminal Procedure Law had changed the long-standing rule permitting superseding indictments to be filed after a mistrial or the reversal of a conviction, and would accordingly have studied the Criminal Procedure Law in an effort to confirm that possibility. Undeniably it would have been good professional work to have considered such a possibility, but I cannot agree that a failure to have *100done so would so clearly fall below the level of reasonable competence as to justify a conclusion that the defendant was deprived of the effective assistance of counsel.
The second assumption is that if defense counsel had read CPL 40.30 (subds 3, 4) he would have understood that these sections effected a change in the law, a change that precluded the filing of a superseding indictment under the circumstances presented. This assumption seems to me clearly erroneous. Considered without regard to Justice Denzer’s Practice Commentary (McKinney’s Cons Laws of NY, Book 11A [1971 ed], CPL 40.30, p 123), the language of CPL 40.30 (subd 3) would seem to me reasonably interpreted as consistent with the prior law.
It is of course true that if the defense counsel had read the dispositive sections in the volume of McKinney’s in which the Practice Commentary appears, which interpreted the subdivision as precluding a superseding indictment under the circumstances presented, it would have been a serious professional lapse not to have read the Practice Commentary and not to have acted upon it. Even such a failure would not seem to me to justify a determination that the defendant was deprived of the effective assistance of counsel in a case in which the record discloses that counsel otherwise acted consistently with professional zeal and ability on behalf of his client.
Nor should it be overlooked that even now CPL 40.30 (subds 3, 4) present serious problems of interpretation. This is perhaps best illustrated by the fact that in an able and conscientious opinion the trial court appears to have misunderstood the holding in Matter of De Canzio v Kennedy (67 AD2d 111, 120) the authority upon which the court placed its principal reliance. The trial court appears to have interpreted the rule set forth in De Canzio as one that would have sanctioned a superseding indictment under the circumstances presented if there had been court permission for a new accusatory instrument. In fact, the opinion in De Canzio concluded that court permission to file a new accusatory instrument may only be granted where the original indictment has been vacated because of a legal defect, a circumstance clearly not present here.
*101Moreover, it is by no means clear that the failure to move to dismiss the superseding indictment was necessarily as damaging as the trial court’s opinion found. The superseding indictment was secured to overcome an evidentiary ruling in a previous trial of the defendant which had denied the People the right to introduce evidence of a meeting between the undercover police officer and the defendant after the alleged sale of narcotics that was the subject of the original indictment. On the limited record available to us, that ruling appears to have been erroneous. In a case in which the ability of the police officer to identify the defendant was the central issue, the later meeting, and its accompanying conversation, would appear to have been clearly admissible, at least in part. I see no reason to assume that on a subsequent trial on the original indictment the trial court would have repeated the original error.
Murphy, P. J., and Kupferman, J., concur with Kassal, J.; Sandler, J., concurs in an opinion; Asch, J., concurs in both the opinion for the court and the concurring opinion of Sandler, J.
Order, Supreme Court, New York County, entered on February 5, 1982, unanimously reversed, on the law, the indictment and the judgment reinstated and defendant directed to surrender. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (subd 5).