People v. Fuller

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 SVa to 7 years, unanimously affirmed.

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 NY2d 383, 388; see also, People v Allen, 86 NY2d 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 US 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 NY2d 36), and we decline to review it in the interest of justice. We have considered and rejected defendant’s remaining claims. Concur — Williams, J. P., Tom, Ellerin, Rubin and Saxe, JJ.