The People, etc., respondent, v. Brandon McFadden, appellant. (2011)

Argued—June 20, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered October 20, 2009, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the first count of the indictment charging criminal possession of a controlled substance in the third degree is dismissed.

At the defendant's first trial, the jury was deadlocked on the charge of criminal possession of a controlled substance in the third degree, but it convicted him of criminal possession of a controlled substance in the seventh degree, which is a lesser-included offense of criminal possession of a controlled substance in the third degree (see People v. Johnson, 297 A.D.2d 822, 823;  People v. Biggs, 280 A.D.2d 484;  People v. Sutton, 289 A.D.2d 424).   As such, the Supreme Court erred in retrying the defendant on the higher offense of criminal possession of a controlled substance in the third degree.   The conviction of criminal possession of a controlled substance in the seventh degree is deemed an acquittal of criminal possession of a controlled substance in the third degree (see CPL 300.50[4] ), and “a retrial on the greater offense would be barred under settled double jeopardy principles” (see People v. Helliger, 96 N.Y.2d 462, 466 [citation and internal quotation marks omitted];  People v. Fuller, 96 N.Y.2d 881, 882–883;  People v. Boettcher, 69 N.Y.2d 174, 182;  People v. Sutton, 289 A.D.2d at 425).   Accordingly, the judgment convicting the defendant of criminal possession of a controlled substance in the third degree must be reversed and that count of the indictment must be dismissed.

The defendant's remaining contention has been rendered academic in light of our determination.   The People's remaining contention is not properly before us.

DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court