Opinion
July 12, 1985
Appeal from the Monroe County Court, Maas, J.
Present — Hancock, Jr., J.P., Doerr, Denman, O'Donnell and Pine, JJ.
Judgment unanimously reversed, on the law, and indictment dismissed without prejudice to the People re-presenting any appropriate charges to another Grand Jury. Memorandum: In April of 1976 defendant was indicted on two counts of burglary in the first degree and one count of assault in the second degree. A jury found defendant not guilty on both burglary counts and not guilty of assault in the second degree or the lesser included charge of assault in the third degree. The jury could not reach a verdict on the lesser included charge of burglary in the second degree. Defendant was subsequently retried and convicted on the lesser burglary charge, and it is from that conviction that defendant appeals.
On appeal, defendant argues that the conviction is jurisdictionally defective because the People failed to obtain a new indictment following defendant's acquittal of all indicted charges at his first trial. We agree.
A "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v Case, 42 N.Y.2d 98, 99; People v. Harper, 37 N.Y.2d 96, 99). When a defendant has been acquitted of the indicted charge, further prosecution on that charge is barred by the double jeopardy clause of the Constitution, and the indictment must be dismissed because there is "nothing remaining to support further criminal prosecution * * * under that accusatory instrument" ( People v Gonzalez, 61 N.Y.2d 633, 635; People v. Mayo, 48 N.Y.2d 245, 253). Although a retrial of defendant on lesser included offenses is permitted (CPL 310.70), the People must first obtain a new accusatory instrument ( see, People v. Fudger, 73 A.D.2d 1020, 1021; see also, People v. Villani, 59 N.Y.2d 781; People v Beslanovics, 57 N.Y.2d 726; People v. Mayo, 48 N.Y.2d, supra, p 250, n 2; People v. Reome, 101 A.D.2d 632, 634; People v. Lee, 100 A.D.2d 357, 358).