Because, in my view, this case falls squarely within our holding under People v Fuller (96 NY2d 881 [2001]), I respectfully dissent.
In Fuller, at the defendant’s trial, in addition to two robbery charges, the jury deliberated on the charges of assault in the second degree and assault in the third degree, under separate counts of the indictment (id. at 882). Defendant was acquitted of the robbery charges and convicted of third-degree assault (id. at 883). The jury, however, was unable to reach a verdict on the second-degree assault charge (id.). Without objection, the court accepted the partial verdict and a mistrial was declared on the second-degree assault count (id.). Defendant was retried on the unresolved assault count, and was ultimately convicted of that crime (id.).
The parties and the judge in Fuller never contemplated the implications of CPL 300.40 (3) (b) and 300.50 (4) when the partial verdict was taken and the mistrial declared; that being the case, the parties never considered that a verdict of guilty on the lesser count meant an acquittal of the greater count by operation of law.
On appeal, however, the defendant argued that the statutory provisions applied and that double jeopardy barred his retrial. We agreed. In doing so, we rejected the People’s claim that the defendant never opposed, and in fact impliedly consented to, the retrial when the mistrial was declared and thus his double jeopardy claim had been waived.
Similarly, in this case, there is no dispute that the crime of criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree (see e.g. People v Sutton, 289 AD2d 424 [2d Dept 2001]). As such, when the jury *266returned the partial verdict of guilty on defendant’s misdemeanor possession charge, by operation of law, there was acquittal of the greater possession count (CPL 300.40 [3] [b]). Once defendant was acquitted of the greater count, it was not possible for him to waive the protections of double jeopardy (Fuller, 96 NY2d at 883-884; People v Boettcher, 69 NY2d 174, 182 [1987]).
The majority contends that this case is different from Fuller and more akin to our decision in People v Echevarria (6 NY3d 89, 91 [2005]). The majority distinguishes Fuller on the basis that in that case “we did not consider the impact of a defendant’s request for a mistrial with knowledge of the impending retrial, prior to the acceptance of a partial verdict” (majority op at 265). However, both the defendant in this case and the one in Fuller were acting under the mistaken belief that the People were allowed to retry the unresolved counts* and were ignorant of the implications of CPL 300.40 (3) (b) and 300.50 (4).
In Echevarria, after the court received a jury note indicating that it had reached unanimity on two of the four counts against the defendant, “the court and the parties discussed the propriety of taking a partial verdict” (6 NY3d at 91). In particular, the prosecutor specifically raised double jeopardy concerns by directing the court to our decision in Fuller, which “holds that a retrial is barred on the higher offense after a jury finds the defendant guilty of a lesser included offense” {id. [emphasis omitted]). “Expressing no hesitancy,” defense counsel advocated for taking the partial verdict, arguing that “Fuller presented no problem[.] [Defense counsel stated]: ‘Judge, just for the record, I would have requested to take a partial verdict in this case. I don’t think [Fuller] is directly applicable to this particular case, and I think the way to do a charge to the jury here, I think that there is no reason why a partial verdict can’t be taken.’ The court acquiesced.” {id.).
The court took a partial verdict, but there was no mistrial on the unresolved counts. Rather, the jury was permitted to continue its deliberations. The jury then announced that it had unanimously found the defendant guilty of the greater offense. Then, on appeal, defendant argued that once the jury rendered its partial verdict finding him guilty of second-degree murder, *267further deliberations were impermissible and the ensuing first-degree murder conviction must be vacated {id. at 92). We rejected that argument. We found significant the fact that the defendant at trial had affirmatively argued against the applicability of CPL 300.50 and Fuller and urged the court not only to take the partial verdict but also to permit the jury to continue to deliberate {id. at 92-93).
In this case, nothing even similar occurred. The jury rendered its partial verdict, a mistrial on the unresolved counts was declared and the jury was discharged. It was before a second jury was empaneled that the defendant raised the double jeopardy issue. Unlike defendant in this case, the defendant in Echevarria clearly indicated he wanted to waive a double jeopardy claim, by expressly disavowing Fuller and declaring that he wanted the jury to continue deliberations on the two unresolved counts. No such waiver language can be found in this case. There was no discussion between the parties of the implications of our holding in Fuller or double jeopardy concerns.
Here, once the jury returned the verdict of guilty on the criminal possession of a controlled substance in the seventh degree, there was no longer a third-degree possession count to be retried. I therefore would affirm the order of the Appellate Division.
Judges Ciparick, Graffeo, Read and Smith concur with Chief Judge Lippman; Judge Pigott dissents and votes to affirm in an opinion.
Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that court.
Indeed, in Fuller, a retrial took place resulting in a jury verdict of guilty on the previously unresolved count.