The opinion of the court was delivered by: Lippman, Chief Judge:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The issue presented by this appeal is whether double jeopardy barred defendant from being retried for criminal possession of a controlled substance in the third degree after a previous jury had deadlocked on that charge, but rendered a partial verdict convicting him of the lesser included offense of criminal possession of a controlled substance in the seventh degree. We find that, under these circumstances, double jeopardy does not preclude defendant's retrial and therefore reverse.
Defendant was indicted for criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree in connection with a single transaction that occurred on July 22, 2008. At his initial trial in June 2009, the jury was not instructed to consider the charges in any particular order. During the second day of deliberations, the jury sent out a note indicating that it had reached a verdict on count three (seventh degree possession), but was unable to reach a unanimous verdict on the remaining counts. The court instructed the jury to continue deliberating on all counts, observing that it had not been deliberating for an extended time, having only received the case late in the afternoon of the previous day.
Shortly thereafter, the jury sent out a note indicating that juror number five was asking to be removed from service. The court refused to grant the request without some further indication as to the nature of the problem and asked to be advised if it was a question of the juror's health. It also instructed the jurors not to surrender their honestly held views or to close their minds to the opinions of their fellow jurors.
The jury then sent out a note indicating that juror number five wanted to be excused due to blood pressure problems, that were "being exacerbated by [her belief that her] individual rights during deliberations in trying to reach a verdict beyond a reasonable doubt [were] being violated."
At that point, defense counsel moved for a mistrial. The court proposed inquiring whether the jury still had a unanimous verdict on the seventh degree possession count and whether further deliberations would be productive on the remaining two counts. The People then indicated that they would like additional information about the juror's blood pressure problem, but the court rejected that idea, saying "[d]efense counsel has indicated he would be moving for a mistrial. There's no prejudice to the People to retry those two counts if [the jury] can't deliberate further. I'm not going to endanger this juror's possible health by virtue of forcing her in some way to continue deliberating if defense is moving for a mistrial."
In response to the court's questions, the jury indicated that they did have a verdict on count three, but that they were deadlocked on the other counts. The court then proposed taking a partial verdict and -- as to the remaining two counts -- either giving the jury an Allen charge or declaring a mistrial. Defense counsel again requested a mistrial as to counts one and two and the court acceded to the request. The jury delivered a partial verdict convicting defendant of criminal possession of a controlled substance in the seventh degree. The court then discharged the jury, noting that the remaining "matters will have to be retried before another jury." Defense counsel ordered the transcripts to prepare for the retrial and the parties agreed to select a date for the retrial at defendant's sentencing proceeding.
Prior to the second trial, defense counsel moved to dismiss the count of criminal possession of a controlled substance in the third degree, arguing that reprosecution for that offense would violate double jeopardy. The court denied the motion and proceeded to trial. The second jury acquitted defendant of the count of third degree criminal sale, but convicted him of third degree criminal possession. At his sentencing proceeding, the court set aside the conviction for seventh degree possession as an inclusory concurrent count.
The Appellate Division reversed and dismissed the count of the indictment charging defendant with criminal possession of a controlled substance in the third degree (87 AD3d 554 [2d Dept 2011]). The Court found that defendant's conviction of the lesser included offense of criminal possession of a controlled substance in the seventh degree was deemed an acquittal of third degree possession under CPL 300.50 (4) and that double jeopardy barred defendant's retrial for the greater offense. A Judge of this Court granted the People leave to appeal and we now reverse.
Under the CPL, which contemplates that a jury is properly instructed to consider inclusory concurrent counts in the alternative, a conviction of a lesser offense is deemed an acquittal of the greater counts submitted (see CPL 300.40 [b]; 300.50 ). However, we have held that a defendant can, by his or her conduct, relinquish a double jeopardy claim (see People v Echevarria, 6 NY3d 89, 92-93 ).
In Echevarria, the defendant was charged with two counts of first degree murder and two counts of second degree intentional murder. The counts were submitted to the jury without any direction as to the order in which they should be considered and without objection by defense counsel (see Echevarria, 6 NY3d at 91-92). When, during deliberations, the jury sent out a note indicating that it had reached a verdict on two unspecified counts, the parties began to discuss the possibility of taking a partial verdict. The prosecutor brought People v Fuller (96 NY2d 881, 883-884 ) to the court's attention -- a case holding that a defendant was deemed acquitted of a greater offense when the jury failed to reach a verdict on that offense, but convicted him of a lesser included offense. Defense counsel in Echevarria argued that Fuller was not applicable and urged the court to take the partial verdict. The court then took the partial verdict convicting Echevarria of the second degree murder charges and directed the jury to continue deliberating, without objection (see 6 NY3d at 91). The following day, the jury convicted defendant of first degree murder.
We found that, in addition to the faulty instruction that was given to the jury without objection, defense counsel had advocated against the relevance of Fuller and had called for the acceptance of the partial verdict (see Echevarria, 6 NY3d at 92). "Although '[o]nce acquitted, it [is] not possible . . . to "waive" the protections against multiple prosecutions,' counsel's unequivocal actions occurred prior to the partial verdict" (Echevarria, 6 NY3d at 92-93, quoting Fuller, 96 NY2d at 884).
Similarly, here, defense counsel failed to object to the improper jury instruction and affirmatively requested a mistrial after the court specifically stated that defendant faced retrial on the top two counts. Having charted his own course by opting for a mistrial and a retrial on the remaining counts, defendant cannot now claim that his retrial is barred. To be sure, Fuller held that a defendant is not precluded from pursuing a double jeopardy claim because he or she fails to request that the charges be considered in the alternative (see 96 NY2d at 883). However, in that case, we did ...