People v. Suarez

Tom, J.P (dissenting).

The majority concludes that defendant can be retried for manslaughter in the first degree without offending the statutory prohibition against double jeopardy (CPL 40.20) because the jury did not “reach” that count of the indictment. This analysis fails because the jury neither failed to return a verdict, resulting in the declaration of a mistrial (CPL 310.60 [1]), nor returned a partial verdict (CPL 310.70 [1]) so as to warrant retrial (CPL 310.60 [2]; 310.70 [2]).

The law pertinent to the disposition of this matter can be concisely stated. Defendant was acquitted of…