Mikoll and Yesawich, Jr., JJ., dissent and vote to affirm in a memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent.
The first count of the indictment was properly dismissed by County Court in that it failed to conform to the statutory requirements as to the form of the indictment spelled out in CPL 200.50 and 200.30. The latter section provides as follows:
"1. Each count of an indictment may charge one offense only.
"2. For purpose of this section, a statutory provision which defines the offense named in the title thereof by providing, in different subdivisions or paragraphs, different ways in which such named offense may be committed, defines a separate offense in each such subdivision or paragraph, and a count of an indictment charging such named offense which, without specifying or clearly indicating the particular subdivision or paragraph of the statutory provision, alleges facts which would support a conviction under more than one such subdivi*1129sion or paragraph, charges more than one offense” (CPL 200.30).
The instant indictment reads as follows: "The defendant, on Route 20, in the Town of Eaton, County of Madison, on November 27, 1988, at approximately 1:50 a.m., committed the crime of criminally negligent homicide and caused the death of Douglas L. Youngs by operating a motor vehicle in violation of Subdivisions two, three and four of Section eleven hundred ninety-two of the Vehicle and Traffic Law, to wit, at the aforesaid time and place, the defendant, with criminal negligence, while in an intoxicated condition, having .10 of one percentum or more by weight of alcohol in his blood as shown by chemical analysis, and having impaired his ability to drive through the ingestion of marijuana, knowingly and unlawfully operated a 1983 Datsun two-door sedan, bearing New York registration JHA 507, in an easterly direction on Route 20 and caused or permitted said vehicle to cross into the westbound lanes of Route 20, and strike a guardwire and roll over, causing the death of Douglas L. Youngs, a passenger in the 1983 Datsun operated by defendant” (emphasis supplied).
In addition to the primary function of informing a defendant of the charges made against him, an indictment also serves (1) to ensure that the crime for which he is brought to trial is in fact one for which he was charged by the Grand Jury, rather than an alternative seized upon by the prosecutor because of subsequently discovered evidence, and (2) as a means of indicating the crimes for which a defendant has been tried in order to prevent a retrial on the same crime which would violate the prohibition against double jeopardy (People v Iannone, 45 NY2d 589, 594-595; see, People v Branch, 73 AD2d 230).
Count one of the indictment attempts to charge the commission of vehicular manslaughter alleged to have occurred in different ways. In enacting CPL 200.30 the Legislature sought to avoid the problem created by grouping alternative ways of committing an offense into one count (People v Iannone, supra).
The position of the prosecution as to the theory of the case, as voiced at oral argument, reflects the confusion generated by the wording of the indictment. The prosecutor originally urged that the People’s theory was based on the combination of alcohol and drug use. The prosecution subsequently abandoned this position and moved for an amendment, which it characterized as only technical. It sought to amend the indictment by substituting the conjunctive "and” for the disjunctive *1130"or”. Such amended indictment, however, would fall askew of CPL 200.30 and 200.50 which require that alternative violations of Penal Law § 125.12 must be set out in separate counts. The majority’s reliance on People v Bennett (182 App Div 871, affd 224 NY 594) and People v Nicholas (35 AD2d 18) is misplaced as they preceded the effective date of the statutes, September 1, 1971 (L 1970, ch 996, § 5).
Indictments may be amended under the CPL in matters relating to form, time, place, names of persons and the like, when such amendment does not change the theory of the prosecution or otherwise prejudice the defendant on the merits (CPL 200.70 [1]; People v Schweizer, 160 Misc 23).
An indictment is insufficient if it does not specify the conduct underlying the charge or reveal facts in support of it. Such defect cannot be corrected by amendment or a bill of particulars but may be corrected by resubmitting it.
The first count was properly dismissed and ordered resubmitted to a new Grand Jury. In view of such resolution, it is unnecessary to address the other issues raised by defendant.