dissent in part in a memorandum by Sullivan, J., as follows: I agree that the convictions of conspiracy in the fourth degree and attempted grand larceny in the first degree should be reversed because of the Rosario violation with respect to the three withheld taped telephone conversations and the improper submission of attempted grand larceny as a lesser included offense of grand larceny, respectively. I do not agree, however, that dismissal of the attempted grand larceny charge of which defendants were convicted is warranted. Nor does the majority justify such dismissal.
Reversal of the attempted grand larceny conviction is warranted because, in the circumstances presented, the theory of the prosecution was impermissibly changed during trial. As a substantive matter, however, dismissal is not warranted. The majority’s ratio decidendi for reversal of that conviction, with which I agree, is lack of notice of the charge, not legal insufficiency nor, indeed, any consideration affecting the sufficiency of the evidence. Nor may defendants’ acquittal of the greater offense, grand larceny, be deemed a dismissal on the merits or acquittal of the lesser, attempted grand larceny in the first degree (by extortion), since the jury found defendants guilty of the latter offense. And, of course, when a defendant takes a successful appeal from a judgment of conviction, he waives his constitutional protection against double jeopardy with respect to that offense. (People v Jackson, 20 NY2d 440).
Thus, while defendants were convicted of an improperly submitted lesser included offense, and reversal is mandated, the offense is preserved for retrial, except that there is no pending charge of attempted grand larceny in the first degree (by extortion) in the indictment nor, in light of defendants’ acquittal of the two counts of grand larceny, of any charged offense of which that crime is a lesser included offense. Under ordinary circumstances, we could authorize the People to seek *538a new indictment charging attempted grand larceny in the first degree (by extortion) predicated on the threat of physical injury to the complainant Pearson (Penal Law §§ 110.00, 155.40; see, People v Gonzalez, 61 NY2d 633; People v Mayo, 48 NY2d 245). In the circumstances, however, the practical solution is for the People to seek reinstatement of the previously dismissed count charging just such an offense, the dismissal of which was not on the merits.
As the majority notes, two counts charging the offense of attempted grand larceny in the first degree were dismissed on the People’s application, without objection or comment by defendants, prior to trial and before the commencement of jury selection. One of these offenses, submitted as a lesser included offense of grand larceny, is the attempted grand larceny of which defendants were convicted. Notwithstanding the prior pretrial dismissal of the count charging this offense, double jeopardy is not a bar to a retrial, since jeopardy does not attach until a jury is impaneled and sworn. (Serfass v United States, 420 US 377, 388; People v Jackson, 20 NY2d 440, supra.) This rule is codified in CPL 40.30 (1):
"[A] person 'is prosecuted’ for an offense * * * when he is charged therewith by an accusatory instrument filed in a court * * * and when the action either:
(a) Terminates in a conviction upon a plea of guilty; or
(b) Proceeds to the trial stage and a jury has been impaneled and sworn”.
Thus, I would reverse the judgment and remand the charge of conspiracy for a new trial with leave to the People to move at Trial Term to reinstate the previously dismissed count charging attempted grand larceny in the first degree, of which, as noted, upon submission as a lesser included offense, defendants were convicted.