Because in my view the jury at the first trial was not afforded “a full opportunity to return a verdict” on the count of intentional murder (Matter of Suarez v Byrne, 10 NY3d 523, 532 [2008]), defendant’s subsequent trial on that count did not violate double jeopardy and his conviction for that offense should stand.
At the first trial, the court charged the jury, without objection, that
“you may consider the charges in any order you wish, thus you may start with either Count 1 [intentional murder] or Count 2 [depraved indifference murder]. However, regardless of which count you consider first, if you should find the defendant guilty of such, you will stop right there and you will not go on to consider the other count. Only if you should find the defendant not guilty of the first *397count or the second, if that’s what you start with, will you then go on to consider the other count. Of course, you may find the defendant not guilty of both counts” (emphasis supplied).
Before the jury read its verdict, the court asked the foreperson which count the jury considered first, and he responded, “Count 2.” The jury found defendant guilty of depraved indifference murder. The Appellate Division reversed defendant’s conviction in the interest of justice so that this defendant could be retried on the intentional murder count.
The majority assumes, based on the fact that the jury sought instruction on both charges, that the jury considered the intentional murder count during its deliberations. But it is well-settled law that “Q]urors are presumed to follow the legal instructions they are given” (People v Baker, 14 NY3d 266, 274 [2010]), and, here, the foreperson apprised the court that the jury considered the depraved indifference murder count first. For all we know, the jury asked for a recharge on both counts so it could determine which count it should consider first. The majority’s conclusion that the jury must have considered the intentional murder count, thereby “impliedly” acquitting defendant of that charge by finding him guilty of depraved indifference murder, is purely speculative.
In Blueford v Arkansas (566 US —, 132 S Ct 2044 [2012]), the foreperson informally apprised the court that the jury had unanimously concluded the defendant was not guilty of the top two murder counts and split on the third count but did not reach the fourth. The jury thereafter resumed deliberations for a half hour and the court declared a mistrial when the foreperson told the court that the jury could not reach a verdict. The United States Supreme Court held that double jeopardy did not bar the defendant’s retrial on the top two counts because “[t]he foreperson’s [initial] report was not a final resolution of anything” because when she apprised the court as to how the jury voted “the jury’s deliberations had not yet [been] concluded” (566 US at —, 132 S Ct at 2050). The continuation of the jury deliberations after the initial report “deprive[d it] of the finality necessary to constitute an acquittal on the murder offenses” (id.).
Unlike the jury in Blueford, however, the first jury here undeniably considered only one count—depraved indifference murder—and found the defendant guilty on that count. If, as per Blueford, a jury is able to consider a number of counts and *398reach a tentative verdict of not guilty as to the top counts, and double jeopardy does not bar a retrial on those counts, I fail to see how the doctrine of “implied acquittal” can prevent defendant’s trial on the unconsidered count of intentional murder, particularly in light of the court’s charge and the presumption that the jury followed it.
In my view, our holding in People v Jackson (20 NY2d 440 [1967], cert denied 391 US 928 [1968]) is controlling. There, the People presented evidence as to premeditated and deliberate murder (former Penal Law § 1044 [1]) and felony murder (former Penal Law § 1044 [2]), and the jury convicted the defendant of the former count, with said conviction being vacated on appeal and remanded for a new trial. At retrial, over the defendant’s objection on double jeopardy grounds, the court allowed the People to admit evidence relative to the felony murder count, and the jury found him guilty of that count. On appeal, this Court held that the first jury’s silence relative to the felony murder count did not have “the effect of acquitting [the defendant] on that theory” since such silence would have only had that effect if the jury “were given a full opportunity to consider the felony murder theory” (id. at 452). And because the court instructed the jury, without exception, to “render only one of the [two] verdicts” and to “render one verdict; one or the other, not both,” there was no reason for it “to consider the felony murder charge once it found the defendant guilty of premeditated murder” (id.). We acknowledged that because the trial court instructed the jury that it was free to choose whichever theory to consider first it was certainly “possible that the jury considered felony murder first and acquitted him of that theory but under the single verdict charge [,] the jury was not able to express an acquittal, and to say that the defendant was so acquitted would be to engage in mere speculation” (id.).
So, too, in this case. The first jury was given the choice of deciding which count to address first, and it considered the depraved indifference murder count, never reaching the intentional murder count. To presume that the jury reached the intentional murder count is not only speculative, but runs counter to our well-settled precedent that the jury is presumed to have followed the trial court’s instructions. Thus, in my view, the first jury could not be said to have “impliedly” acquitted defendant of intentional murder, and therefore I would affirm the order of the Appellate Division.
In sum, we have a defendant twice convicted of a homicide he undoubtedly committed and twice having his conviction *399overturned, on grounds that can only be described as technical. If law enforcement is puzzled as to what to do next, we shouldn’t be surprised.
Chief Judge Lippman and Judges Ciparick, Graffeo and Smith concur with Judge Jones; Judge Pigott dissents and votes to affirm in a separate opinion in which Judge Read concurs.
Order reversed, etc.