The opinion
Gagliardi, J.
(concurring). I concur in the result reached *267 by the majority upon two grounds. First, the double jeopardy claim is a personal right to be timely interposed by defendant, and failure to timely claim that right, as at bar, constitutes a waiver thereof (People v La Ruffa, 37 NY2d 58 ; United States v Kehoe, 516 F2d 78, cert den 424 US 909 , 44 US Law Week 3464). Secondly, the principle of law codified in CPL 40.30 (subds 3 and 4) that where a defective accusatory instrument never placed defendant in jeopardy, a retrial is authorized (see People ex rel. Zakrzewski v Mancusi, 22 NY2d 400 ), remains unimpaired by recent pronouncements of the Supreme Court (United States v DiSilvio, 520 F2d 247; United States v Pereira, 524 F2d 969).
Glickman, P. J., and Pittoni, J., concur in memorandum; Gagliardi, J., concurs in a separate memorandum.