CPL 210.40 is a successor to section 671 of the Code of Criminal Procedure, which in turn has been said to be merely a substitute for the ancient right of the Attorney-General to discontinue a prosecution.Matter of McDonald v. Sobel, 272 App. Div. 455, 462, affd. 297 N. Y. 679; People v. Willis, 23 Misc. 568, 571 But section 671 allowed the court to dismiss an indictment "in furtherance of justice" either on motion of the District Attorney or on its own motion; moreover, the code removed the right of the prosecutor to abandon the indictment except in compliance with section 671.Code Crim. Pro., § 672 The early history of determinations under the statute evinces the inclination of the court to use its provisions sparingly;cf. People v. Petrea, 92 N. Y. 128, 144 the statute was usually invoked to dismiss an indictment for the insufficiency of evidence before a grand jury after a defendant's motion to inspect the minutes had been granted.cf. People v. Phillips, 14 Misc 2d 565; People v. Briggs, 50 Misc 2d 1062 (The statute provided a method to afford relief to a defendant, who could not move to inspect the minutes of the grand jury without showing a reason to believe that the evidence before it was insufficient to support the indictment.People v. Howell, 3 N Y 2d 672 Since the defendant could not know the nature of the proceedings before the grand jury, he was obviously at a disadvantage.Cf. Matter of Miranda v. Isseks, 41 A D 2d 176 [2d Dept., dec. Mar. 19, 1973].)
