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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Shawn COLLIER, Defendant-Appellant.  (Appeal No. 2.)

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ).   We reject the contention of defendant that his indictment and prosecution for that crime are barred by double jeopardy.   The original indictment charged defendant with two counts of murder in the second degree (§ 125.25 [1], [2] ) and two weapon possession counts.   The jury acquitted defendant of the two murder counts but found him guilty of the weapon possession counts and manslaughter in the first degree as a lesser included offense of intentional murder.   We reversed that judgment of conviction on appeal, granted a new trial on the weapon possession counts, and otherwise dismissed the indictment “ without prejudice to the People to re-present any appropriate charges under [the intentional murder] count to another grand jury” (People v. Collier, 303 A.D.2d 1008, 1009, 757 N.Y.S.2d 662, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481).   Under these circumstances, defendant's subsequent indictment and prosecution for manslaughter in the first degree are not barred by double jeopardy (see CPL 40.30[4] ).   The ambiguity in the verdict in the first trial with respect to whether the jury found defendant guilty of manslaughter in the first degree under subdivision (1) or (2) of Penal Law § 125.20 does not alter our conclusion.   Contrary to defendant's contention, those two subdivisions are not inconsistent because “conviction of one would not necessarily negate the defendant's guilt of the other” (People v. Moloi, 135 A.D.2d 576, 577, 521 N.Y.S.2d 794, lv. denied 70 N.Y.2d 1009, 526 N.Y.S.2d 943, 521 N.E.2d 1086;  see also People v. McDavis, 97 A.D.2d 302, 304-305, 469 N.Y.S.2d 508).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.