Whether Defendant can be convicted of second-degree assault in a second trial when, in the first trial, a jury deadlocked on the second-degree assault count and found him guilty of third-degree assault for the same incident.

No. Under CPL 300.40(3)(b), a verdict of guilty upon a lesser count is deemed an acquittal upon every greater count submitted by the People against Defendant.

Defendant physically attacked his girlfriend and was indicted on the following four counts: first-degree robbery (Penal Law § 160.15[3]); second-degree robbery (Penal Law § 160.10[2][a]); second-degree assault with intent to cause physical injury by means of a dangerous instrument (Penal Law § 120.05[2]); and assault with intent to cause serious physical injury (Penal Law § 120.05[1]). At the close of the evidence, the trial judge submitted to the jury a lesser charge of third-degree assault upon determining that the People failed, under count four of the indictment, to demonstrate by legally sufficient evidence that Defendant caused serious physical injury. In the jury instructions, the judge made it clear that third-degree assault is a lesser charge of second-degree assault.

The jury acquitted Defendant on both robbery counts and found Defendant guilty of third-degree assault, but was unable to reach a verdict on the second-degree assault charge. Defendant was eventually convicted of second-degree assault in a subsequent trial. The Appellate Division affirmed the convictions. The Court of Appeals reversed the order of the Appellate Division and dismissed the second-degree assault charge against Defendant.

Under CPL 300.40(3)(b), a verdict of guilty upon a lesser count is deemed an acquittal upon every greater count submitted. The Court of Appeals held that Defendant was acquitted of second-degree assault when the jury eventually found him guilty of the lesser charge of third-degree assault. Once Defendant was acquitted, he could not waive the protections against multiple prosecutions. Furthermore, Defendant's retrial on the second-degree assault count was prohibited under the principle of double jeopardy.