DECISION & ORDER The defendant was previously convicted of manslaughter in the first degree (as a lesser-included offense of intentional murder in the second degree) and other offenses, under Indictment Number 7949/2012. Upon appeal the Appellate Division reversed the defendant’s conviction in its entirety and ordered a new trial (154 AD3d 777 [2017]), and following that reversal, under Grand Jury No. 866/2018 the People indicted the defendant for manslaughter in the first degree, a crime which was not on the original indictment.The defendant now moves to inspect the grand jury minutes for Indictment Number 866/2018; upon inspection, the defendant seeks an order dismissing the indictment on the ground of legal insufficiency of the evidence. In the alternative, the defendant moves to dismiss Indictment No. 866/2018 on the basis that the sole offense charged therein, manslaughter in the first degree, is barred by the statute of limitations. Asserting the defense of former jeopardy, the defendant further moves to preclude the People from subjecting him to further prosecution on any count charged under Indictment No. 7949/2012 for which the jury did not reach a verdict. The People oppose the defendant’s motion.Upon review of the parties’ respective motion papers, the trial transcript and the court file, the defendant’s motion to dismiss Indictment No. 866/2018 is hereby granted, with leave given to the People to represent. The defendant’s motion to preclude the People from retrying the defendant on Counts 2-3, 6, 8-10, 12 and 14 of Indictment No. 7949/20121 is granted only with respect to Count 2, which charges the defendant with intentional murder in the second degree.BACKGROUNDOn August 30, 2012, the defendant repeatedly discharged a firearm in the direction of a group of individuals who were in the vicinity of 40 Clarkson Avenue in Kings County, four of whom sustained gunshot wounds. Two of those people, Jacques Magny and Aaron Munoz, suffered minor injuries. A third person, Rolly Edouard, was struck by four bullets, which caused significant bodily injury that required doctors to remove part of his colon. The sole fatality of the shooting was Fatima Gordon (“decedent”), who died on scene after a bullet entered through the left side of her back, piercing her lung and aorta.A grand jury had originally returned a fourteen-count indictment under Kings County Indictment Number 7949/2012, which charged the defendant with two counts of intentional murder in the second degree (PL §125.25 [1]), depraved indifference murder in the second degree (PL §125.25 [2]), attempted murder in the second degree (PL §110/125.25 [1]), two counts of assault in the first degree (PL §120.10 [1], [3], one intentional and one reckless), one count of attempted assault in the first degree (PL §110/120.10 [1]), three counts of intentional assault in the second degree (PL §120.05 [2]), one count of reckless assault in the second degree (PL §120.05 [4]), one count of reckless endangerment in the first degree, and two counts of criminal possession of a weapon in the second degree (PL §§265.03 [3], 265.03 [1] [b]).By decision and order, dated October 18, 2013 (Firetog, J.), upon its in camera review of the grand jury minutes, the court determined that the evidence presented was legally sufficient to establish every offense charged except assault in the second degree as to Munoz (Count 11 of the indictment). It dismissed Count 11 with leave to represent2, and otherwise sustained the indictment. The trial of Indictment 7949/2012 commenced on September 15, 2014 before the Honorable Mark Dwyer.On September 30, 2014, the court conducted an off-the-record charge conference with counsel for the defendant and the People; after their discussion, the court indicated that, on consent of both sides, the following five counts of the indictment would be submitted to the jury: Count 1, intentional murder in the second degree under a transferred intent theory as to Magny; Count 4, attempted murder in the second degree with respect to Magny; Count 5, attempted assault in the first degree with respect to Magny; Count 7, assault in the first degree with respect to Edouard; and Count 13, criminal possession of a weapon in the second degree for possession of a firearm outside the defendant’s home or business. Prior to closing arguments on October 1, 2014 — and upon the request of defense counsel — the court agreed to submit the charge of manslaughter in the first degree as a lesser included offense of Count 1.On October 6, 2014, the jury acquitted the defendant of murder in the second degree, but convicted him of the lesser included offense of manslaughter in the first degree. The jury also found the defendant guilty on the remaining counts submitted — to wit, Counts 4, 5, 7 and 13. To the extent that the jury acquitted the defendant of murder in the second degree but found him guilty of attempted murder in the second degree, the verdict was repugnant. Accordingly, upon the People’s motion, Count 4 of the indictment was subsequently dismissed; the jury’s verdict was otherwise accepted.The defendant appealed his convictions for manslaughter in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree. On appeal, the defendant asserted, inter alia, that he was deprived of his right to be present at his criminal trial in violation of the confrontation clauses of the State and Federal Constitutions. During the trial, the defendant was incarcerated at Rikers Island; although the defendant was present for the first two days of trial, he did not appear in court on the third day, September 22, 2014. When the court inquired as to the defendant’s status, the Rikers Island expediter stated that the defendant had refused to come to court that morning and would not be produced. Although the parties were unaware of the reason why the defendant had allegedly decided to remain at Rikers Island, the court opined that it had not been provided with good cause to delay the proceedings and allowed the People to call their next two witnesses over the defense’s objection.On appeal, the Appellate Division concluded that the trial court failed to conduct an adequate inquiry into the circumstances of the defendant’s absence and found the record insufficient to demonstrate that the defendant deliberately absented himself from court so as to forfeit his right to be present. The Appellate Division reversed the judgment as a matter of law and ordered a new trial (People v. Johnson, 154 AD3d 777 [2d Dept 2017]).On January 29, 2018, the People convened another grand jury, which indicted the defendant for manslaughter in the first degree under Indictment Number 866/2018. In addition to the manslaughter charge and the charges for which the defendant was convicted at the first trial, the prosecution also seeks to submit Counts 2-3, 5-6, 8-10, 12, and 14 of Indictment 7949/2012 at the defendant’s retrial. Conversely, the defendant seemingly avers that the People may only reprosecute him on Counts 7 and 13 of Indictment 7949/2012 (which charge first degree assault and possession of a weapon, respectively). In support of this assertion, the defendant raises three general arguments: (1) that the People presented insufficient evidence to establish the offense of manslaughter in the first degree under Indictment 866/2018; (2) that the statute of limitations bars the People from charging the defendant with manslaughter in the first degree; and (3) that double jeopardy precludes the People from submitting any charges in the original indictment on which the jury did not reach a verdict.SUFFICIENCY OF THE GRAND JURY MINUTES FOR INDICTMENT 866/2018 AND STATUTE OF LIMITATIONS CLAIMTo the extent that the defendant contends that the statute of limitations (CPL §30.10) barred the charge of manslaughter in the first degree because it was filed more than five years after the shooting, his argument is without merit. The defendant’s statute of limitations claim is based upon the flawed premise that Indictments 7949/2012 and 866/2018 constitute separate criminal transactions for purposes of CPL §30.10.A “criminal action commences with the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of an action, it commences when the first of such instruments is filed” (CPL §1.20 [16]). In the instant matter, manslaughter in the first degree was submitted as a lesser included offense of Count 1 of Indictment 7949/2012, which charged the defendant with intentional murder. Since the lesser included offense could have been timely charged in the 2012 indictment, the prosecution of the defendant for manslaughter in the first degree is not time-barred (see generally People v. Turner, 10 AD3d 458 [2d Dept 2004]).3The defendant also seeks an order dismissing the indictment on various other grounds, all of which are without merit. Nonetheless, upon review of the grand jury minutes in camera, the court finds that the People omitted material information relevant to the grand jury’s determination as to the credibility of civilian eyewitness Rigoberto Degracia, thereby creating a risk of prejudice to the defendant and rendering the proceedings defective. For the following reasons, the indictment is dismissed with leave to represent.The only proof adduced in the grand jury tending to establish the defendant’s identity as the perpetrator of the shooting was presented through the testimony of Detective Lorraine Winters and Degracia, both of whom testified at the first grand jury proceeding. Detective Winters attested that she had taken an oral statement from the defendant on September 5, 2012, in which he purportedly admitted that he had personal problems with Magny and one of Magny’s associates and also indicated the type of gun he used to commit the shooting.Degracia testified that he was on Clarkson Avenue at approximately 9:00 p.m. on August 30, 2012, at which time he saw Magny and four or five other people congregated by one of the vehicles parked on the street. He noticed the decedent walking down Clarkson Avenue with several of her family members, including her young son. According to Degracia, the defendant rode his bicycle down the block towards Magny, fired multiple shots in Magny’s general direction, and then fled the location. The substance of Degracia’s sworn recitation of facts was substantially similar to that of his grand jury testimony in 2012.The People also called Degracia as a witness at the trial of Indictment 7949/2012. When he took the witness stand, Degracia attested that he could not recall “being out there that night” when the decedent was shot (Trial tr at 548, line 25). He further stated he did not remember seeing anyone “ride up on a bicycle who started shooting” because “everything happened so fast” (Trial tr at 549, lines 1-4). The court inquired as to whether Degracia recalled testifying before the grand jury in the week or two immediately following the shooting and whether he had testified truthfully at that proceeding; after Degracia answered both questions in the affirmative, the judge allowed the People to read Degracia’s grand jury testimony into the record as a past recollection recorded.Based on the sequence of Degracia’s testimony, he was purportedly unable to recall witnessing the shooting two years after its occurrence, but remembered the shooting in detail approximately four years after it purportedly dissipated from his memory. This information undoubtedly bears on the issue of Degracia’s credibility and is the type of evidence that would ordinarily constitute Giglio/Brady material (People v. Frantz, 57 AD3d 692 [2d Dept 2008]; see Giglio v. United States, 405 US 150, 154-155 [1972]).4 However, the 2018 grand jury was not apprised of the fact that Degracia had previously testified under oath that he could not recall seeing anyone, let alone the defendant, fire a weapon at Magny.5The People enjoy broad discretion regarding the manner in which their case is presented in the grand jury and, with certain exceptions, are not obligated to present exculpatory evidence therein (People v. Ramjit, 203 AD2d 488, 489 [2d Dept 1994] [internal citations omitted], lv denied 84 NY2d 831 [1994]; see People v. Lancaster, 69 NY2d 20 [1986], cert denied 480 US 922 [1987]). Nevertheless, where the failure to disclose such evidence may “potentially prejudice the ultimate decision reached by the grand jury,” the indictment is subject to dismissal (People v. Goldstein, 73 AD3d 946, 948 [2d Dept 2010]). “The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias” (People v. Huston, 88 NY2d 400, 409 [1996]).Here, the same Assistant District Attorney who tried the defendant on Indictment 7949/2012 also presented the People’s case to the 2018 grand jury. At trial, the People had informed the court that Degracia had reservations about testifying against the defendant in open court, fearing possible retaliatory action that could jeopardize the safety of his children. After conducting a Sirois hearing, the trial judge determined that Degracia’s general and vague concerns of a potential reprisal were insufficient to compel the conclusion that the defendant had attempted to procure Degracia’s absence at trial so as to be deemed to have forfeited his right to confront and cross-examine Degracia (People v. Sirois, 92 AD2d 618 [2d Dept 1983]; see People v. Williams, 125 AD3d 697 [2d Dept 2015]).Nevertheless, as previously mentioned, upon the People’s motion, the trial court allowed Degracia’s grand jury testimony into evidence as a past recollection recorded. Because the People specifically relied upon Degracia’s inability to recall the shooting at trial, the subsequent failure to address the issue in the grand jury impaired the integrity of the proceeding — a conclusion further buttressed by the manner in which the People instructed the 2018 grand jury regarding the requirement that the defendant’s confession required corroboration.The prosecutor specifically directed the grand jury to consider Degracia’s testimony as such corroborating proof, which likely caused the grand jury to impute greater significance to his attestations. While the People also submitted, inter alia, the decedent’s death certificate as additional evidence that a crime occurred, other than the defendant’s unrecorded oral admission, Degracia furnished the only proof tending to identify the defendant as the perpetrator thereof. Therefore, Degracia’s testimony was likely a determinative factor in the grand jury’s ultimate decision, the persuasive value of which turned on the grand jury’s perception of Degracia’s credibility. Despite being aware that there existed circumstances likely to affect a reasonable juror’s assessment of Degracia’s credibility, the People opted to withhold the information, thereby resolving an issue ordinarily within the province of the grand jury and creating an impermissible risk of prejudice to the defendant (People v. Di Falco, 44 NY2d 482, 487-488 [1978]).Accordingly, the defendant’s motion to dismiss Indictment 866/2018 is granted, albeit with leave given to the People to represent.DOUBLE JEOPARDYIndictment 7949/2012 contained, among other things, three counts of murder in the second degree. Counts 1 and 2 of the indictment charged the defendant with intentional murder in the second degree under a theory of transferred intent — namely, that the defendant killed the decedent while intending to kill “Person A” (later identified as Jacques Magny) and while intending to kill “Person B” (an individual who was never named), respectively. Count 3 accused the defendant of the crime of depraved indifference murder in the second degree.Of the three, only Count 1 — intentional murder with respect to Magny — was submitted to the jury. The jury ultimately acquitted the defendant of murder in the second degree, but convicted him of the lesser included offense of manslaughter in the first degree. The People now seek to prosecute the defendant on Counts 2 and 3 at the retrial of Indictment 7949/2012 (in addition to trying him for manslaughter in the first degree under Indictment 866/2018).As an initial matter, where — as is the case here — an appellate court order reverses a judgment of conviction and orders a new trial on the accusatory instrument, “such accusatory instrument is deemed to contain all the counts and to charge all the offenses which it contained and charged at the time the previous trial was commenced, regardless of whether any count was dismissed by the court in the course of such trial, except (a) those upon or of which the defendant was acquitted or deemed to have been acquitted, and (b) those dismissed upon appeal or upon some other post-judgment order” (CPL §470.55 [1]). Under the facts of this case, to determine if the People may try the defendant on Counts 2 and 3, it is necessary to examine whether the defendant has been acquitted or deemed acquitted of the offenses charged therein — an issue which implicates double jeopardy principles.The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb” — language which is substantially mirrored in New York’s Double Jeopardy Clause (NY Const, art I, §6). The prohibition against double jeopardy protects an individual from being prosecuted for the same offense for which he has been acquitted or convicted, and prevents the government from “imposing multiple punishments for the same offense in successive proceedings” (Matter of Suarez v. Byrne, 10 NY3d 523, 532 [2008], rearg denied 11 NY3d 753 [2008]).New York has also enacted statutory double jeopardy protections, which are codified in CPL §40.20. The Court of Appeals has indicated that, to the extent that the statutes provide greater protections than those afforded by the state or federal constitutions, “they are to be found in CPL 40.20 (2), not CPL 40.20 (1)” (Polito v. Walsh, 8 NY3d 683, 690 [2007]). CPL §40.20 (2) provides that a “person may not be separately prosecuted for two offenses based upon the same act or criminal transaction” unless one of the nine exceptions enumerated in the statute applies. Here, in addition to the offense of manslaughter in the first degree, the People seek to try the defendant for offenses charged under the original indictment, the retrial of which does not constitute a “second prosecution.” It is therefore unnecessary for the court to examine the additional safeguards prescribed by New York’s statutory double jeopardy provisions.Count 2 — Intentional Murder in the Second DegreeThe People concede that the defendant cannot be retried on Count 1. Moreover, the following facts are undisputed: Counts 1 and 2 charge the defendant with a violation of the same statutory provision, Penal Law §125.25 (1); both counts relate to the same decedent; and both counts are predicated upon the same conduct. The People allege that they may submit Count 2 at the retrial of Indictment 7949/2012 because the crimes charged in Counts 1 and 2 do not constitute the “same offense” for double jeopardy purposes.To assess whether two counts charge the “same offense,” New York adheres to the Blockburger test, under which “two offenses are the same unless each requires proof of a fact the other does not” (Matter of Suarez at 532; see Blockburger v. United States, 284 US 299 [1932]). Contrary to the prosecution’s claim, Blockburger is inapplicable under the circumstances — namely, the fact that this case involves a sole decedent. The Blockburger test is employed “to determine whether two different statutory offenses are the same for purposes of constitutional jeopardy” (id.). It is of little use in the instant matter, since both counts charge a violation of a single statutory provision based on the same conduct (see id. at 538).Regardless, the two offenses would be deemed the same under Blockburger. “The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense charged against the defendant, not on the actual evidence to be presented at trial” (People v. Prescott, 66 NY2d 216, 221 [1985], cert denied 475 US 1150 [1986]). A person commits murder in the second degree when (1) with intent to cause the death of another person, (2) he causes the death of such person or of a third person (PL §125.25 [1]). Here, both counts are predicated upon a theory of transferred intent. The “focus of the doctrine of transferred intent under Penal Law §125.25 (1) is the identity of the person whose death actually resulted (People v. Fernandez, 88 NY2d 777, 783 [1996]). Thus, to establish the intent element, it is only necessary to show that the defendant intended to kill another person — regardless of the identity of the intended target. Accordingly, the People are barred from seeking to further prosecute the defendant on Count 2 of Indictment 7949/2012.Count 3 — Depraved Indifference Murder in the Second DegreeWhile Count 3 also charges the defendant with murder in the second degree under PL §125.25, it accuses the defendant of violating a different subsection of the statute than Counts 1 and 2. As noted above, the threshold inquiry is whether the defendant was acquitted or deemed acquitted of the crime charged in Count 3. To resolve the issue, the court must first examine whether depraved indifference murder and intentional murder are the “same offense” for purposes of double jeopardy.Under the Blockburger test, intentional murder and depraved indifference murder constitute discrete offenses because “depraved indifference is a culpable mens rea, distinct from the mens rea required for intentional murder” (People v. Dubarry, 25 NY3d 161, 172 [2015], citing People v. Feingold, 7 NY3d 288, 294 [2006]). The two offenses are by their very definition inconsistent crimes — each of which requires the People to prove a statutory element of intent absent from the other (see People v. Gause, 19 NY3d 390, 394 [2012]). Where a single act may be charged under two statutes, “if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other” (Matter of Covington v. Supreme Court of Kings County, 21 AD2d 822, 823 [2d Dept 1964] [internal citation omitted], affd 15 NY2d 855 [1965]). Accordingly, the jury’s verdict of acquittal on Count 1 would not preclude the defendant from being prosecuted on Count 3 of Indictment 7949/2012 when the matter is retried.6Defense counsel also raises a collateral estoppel claim, arguing that “the jury actually found the defendant innocent of the core element of Count 3, depraved indifference,” by finding him guilty of manslaughter in the first degree; this contention is without merit. The Supreme Court has construed the Double Jeopardy Clause to incorporate the doctrine of collateral estoppel, which provides that once “an issue of ultimate fact has [] been determined by a valid and final judgment, the issue cannot again be litigated between the same parties in any future lawsuit” (Ashe v. Swenson, 397 US 436, 443 [1970]; see Dowling v. United States, 493 US 342, 356 [1990]).“[D]epraved indifference murder and intentional manslaughter are not inconsistent counts: a defendant can recklessly cause a grave risk of death while intentionally inflicting serious physical injury” (Matter of Suarez at 541). Consequently, the jury’s determination that the defendant intended to cause serious physical injury to Magny has no bearing on the ultimate factual issue for the charge of depraved indifference murder, so there is no collateral estoppel bar precluding future prosecution of the defendant on Count 3.Moreover, unlike the majority of the cases where the defendant is charged with both intentional and depraved indifference murder, here, the two offenses were not charged to the jury as alternative counts. The jury never considered the charge of depraved indifference murder, nor did it consider any other charge that would have required proof that the defendant acted “with depraved indifference to human life.” As a result, it cannot be said that the jury implicitly acquitted the defendant on Count 3 as “[t]he implied acquittal bar to reprosecution presupposes that the first jury was given a full opportunity to return a verdict on the particular charge that the prosecutor seeks to advance in the second trial” (id. at 532 [internal quotation omitted]).The crux of the defendant’s objection to the potential prosecution of Count 3, however, is rooted in the notion of fundamental fairness — namely, that the People seek to punish the defendant for successfully appealing his manslaughter conviction by charging him with a graver offense than that for which he stood convicted after his first trial. It is axiomatic that “[c]onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy” (Green v. United States, 355 US 184, 193-194 [1957]). To safeguard the protections afforded by the state and federal double jeopardy clauses, a defendant who successfully appeals from an erroneous conviction on a lesser offense cannot be reprosecuted for the greater offense of which he was previously acquitted (id.). In the instant matter, the defendant’s reliance on this legal principle is misplaced.To the extent that the defendant argues that his prosecution for depraved indifference murder would evoke the same concerns at the heart of Green and its progeny, he overstates the breadth of those decisions. The cases do not stand for the proposition that, as a matter of fundamental fairness, a defendant who successfully appeals his conviction may not be subjected to subsequent prosecution for any crime which is of a greater or more serious degree than that on which he was previously convicted. Rather, double jeopardy only precludes further prosecution of the defendant for any crime that is considered to be a greater included offense of the crime of conviction — in other words, one that would constitute the “same offense” under Blockburger (see generally Green, supra; People v. Ressler, 17 NY2d 174 [1966]; United States ex rel. Hetenyi v. Wilkins, 348 F2d 844 [2d Cir 1965], cert denied 383 US 913 [1996]). While depraved indifference is a graver homicide offense than manslaughter in the first degree, it is not a greater included offense thereof, so the fundamental fairness concerns addressed in Green are not present here.The last argument proffered by the defendant is akin to a claim that the court issued a trial order dismissal of Count 3.7 Both parties acknowledge that Count 3 is deemed to have been dismissed by the court because it was not submitted to the jury (CPL §300.40 [7]). Nonetheless, under CPL §470.55, the determinative factor is not whether the count was “dismissed” as a matter of procedure, but whether the non-submission of the charge constituted an acquittal thereof.The “dismissal of a count due to insufficient evidence is tantamount to an acquittal for purposes of double jeopardy and protects a defendant against additional prosecution for such count” (People v. Biggs, 1 NY3d 225, 229 [2003] [internal citations omitted]). Conversely, where the court’s decision was based on grounds unrelated to legal insufficiency, the defendant cannot be said to have been acquitted of the charge and double jeopardy will not bar reprosecution on the count (People ex rel Maula v. Freckleton, 176 AD2d 590, 591 [1st Dept 1991], lv denied 78 NY2d 862 [1991], citing Matter of Pastrana v. Baker, 55 NY2d 315 [1982]; see Matter of Lionel F., 152 AD2d 571 [2d Dept 1989], affd on other grounds 76 NY2d 747 [1990]). It is not the form of the judge’s action in dismissing a given count that determines whether the dismissal constitutes an acquittal; rather, the deciding factor is whether the judge’s ruling “represents a resolution, correct or not, of some or all of the factual elements of the offense charged” (Biggs at 229 [internal citation omitted]).Because the September 30, 2014 charge conference was conducted almost entirely off-the-record, there is limited information regarding the non-submission of depraved indifference murder to the jury (which would have been in the alternative to intentional murder). Following the off-record discussion, the judge summarized for the record what had transpired, stating in sum and substance, that “without disagreement from either side,” the court would submit Counts 1, 4, 5, 7 and 13; both defense counsel and the People agreed that the judge’s recollection of the facts was accurate. Neither the court nor the attorneys ever alluded to anything demonstrating that the court perceived evidentiary deficiencies with respect to any of the remaining non-submitted indictment counts. There is no basis for concluding here that the trial judge dismissed Count 3 on the grounds of legal insufficiency.For obvious reasons, whether the judge could have properly submitted the charge of depraved indifference murder based upon the evidence presented at trial is an important factor to be considered in determining whether there was a trial order dismissal thereof. Upon review of the stenographic trial minutes, this court finds that the evidence presented at trial appears to have been sufficient to permit the submission of Count 3 as a matter of law, which undermines the defendant’s claim that he was deemed acquitted of the charge.Witnesses for the prosecution attested to animosity between the defendant and Magny prior to the incident and alleged that Magny was the intended target of the shooting; and the jury found that the defendant acted with the intent to cause serious physical injury to Magny. The trial testimony also established that the defendant pointed a firearm in Magny’s general direction and repeatedly discharged the weapon, ignoring the presence of innocent bystanders who were in close proximity to Magny — three of whom were struck by bullets. Despite the defendant’s claims to the contrary, the circumstances surrounding the shooting can be said to evince a depraved indifference to human life, and a jury could reasonably find that defendant did not act with the intent to harm the three bystanders, but rather recklessly engaged in conduct with complete disregard for their lives in his effort to fire on Magny (Dubarry at 214; see People v. Craft, 36 AD3d 1145, 1147 [3d Dept 2007], lv denied 8 NY3d 945 [2007]).Furthermore, defense counsel surmises that the court must have believed that the People had a stronger case for intentional — rather than depraved indifference — murder, but comes short of alleging that the court ever stated as much. His conclusion largely relies on recent Court of Appeals jurisprudence which instructs that, when presented with a “twin count indictment” — one that charges a defendant with both depraved indifference murder and intentional murder — a trial court should typically “presume that the defendant’s conduct falls within one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts” (People v. Suarez, 6 NY3d 202, 215 [2005] [internal citation omitted]).However, nothing in the record demonstrates that this general preference for the submission of one theory of prosecution, rather than two counts in the alternative, was a factor in the trial court’s decision. Even if it were, the defense merely characterizes the judge’s action as dismissing “the count that [was] least appropriate to the facts,” which — at most — implies that the court found sufficient, but perhaps less compelling, evidence to support Count 3 of the indictment. Particularly because defense counsel on the instant motion was also trial counsel, his characterization of events — which fails to allege that the court found insufficient evidence of depraved indifference murder — carries particular significance.Additionally, the defendant admits that he failed to seek a trial order dismissal of Count 3 pursuant to CPL §290.10 or to challenge the sufficiency of the People’s evidence in support thereof, despite being afforded ample opportunity to do so.8 The only reasonable inference to be drawn from the record is that the legal sufficiency of the evidence establishing the charge of depraved indifference murder was never placed in issue during the course of the first trial. The absence of anything evincing that the trial court intended to issue a trial order of dismissal, coupled with the defendant’s underwhelming and speculative allegations in the instant motion, strongly militates against concluding that the court declined to submit Count 3 to the jury due to legal insufficiency.Here, the defendant cannot be said to have been acquitted or deemed acquitted of depraved indifference murder. Therefore, double jeopardy does not bar future prosecution of the defendant on Count 3 of Indictment 7949/2012.Remaining CountsThe defendant also seeks to preclude the People from prosecuting him on Counts 5, 6, 8-10, 12 and 14 of Indictment 7949/2012 when the matter is retried; unlike his specific arguments addressing double jeopardy concerns with respect to Counts 2 and 3, for the remaining counts, the defendant relies on the general assertion that the prosecution is barred from trying the defendant on any count of the 2012 indictment for which the jury did not reach a decision.Only Count 5 of the indictment, which charges attempted assault in the first degree as to Magny, warrants additional consideration. Although Count 5 was submitted to the jury, it was done so as a lesser included offense of the third submitted count — namely, Count 4 of the indictment, attempted murder in the second degree as to Magny.9 Under New York’s “mandatory ‘acquit-first’ instruction, a jury must deliberate on charges in decreasing order in culpability, unanimously acquitting on the more serious crime before considering any lesser included offense” (Matter of Suarez at 534 [internal citations omitted]). Where, as here, the jury convicted the defendant on the greater offense, “it was never given an opportunity to return a verdict on the [lesser offense], and retrial” on the unreached counts does not violate double jeopardy” (People v. Hernandez, 41 AD3d 358, 360 [1st Dept 2007] [internal citations omitted]).Moreover, a conviction for attempted assault in the first degree with respect to Magny would not be inconsistent with the jury’s acquittal on Count 1. Therefore, the defendant may be prosecuted on Count 5 when he is retried on Indictment 7949/2012.Accordingly, Indictment 866/2018 is dismissed with leave to represent. The defendant’s motion to preclude the People from retrying the defendant on Counts 2-3, 6, 8-10, 12 and 14 of Indictment 7949/2012 is granted with respect to Count 2 only.This decision constitutes the order of the court.ENTER:
