Opinion
October 3, 2000.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered June 17, 1997, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 3 1/2 to 7 years, unanimously affirmed.
Michael S. Morgan, for respondent.
Robert E. Carrigan, for defendant-appellant.
Before: Williams, J.P., Tom, Ellerin, Rubin, Saxe, JJ.
By consenting to acceptance of a partial verdict of guilty of assault in the third degree, along with a mistrial and retrial on the charge of assault in the second degree, defendant waived his present double jeopardy claims (see, People v. Ferguson, 67 N.Y.2d 383, 388; see also,People v. Allen, 86 N.Y.2d 599). In any event, since the jury explicitly failed to agree on the greater offense (as opposed to remaining silent thereon), its guilty verdict on the lesser included offense did not operate as an acquittal of the greater offense for purposes of constitutional double jeopardy (Richardson v. United States, 468 U.S. 317, 322-326). To the extent that defendant is claiming that his conviction of the lesser offense is nevertheless "deemed an acquittal" of the greater pursuant to CPL 300.50(4), that claim, aside from being waived as noted previously, is unpreserved (see, People v. Dodson, 48 N.Y.2d 36), and we decline to review it in the interest of justice. We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.