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 intentional murder in the second degree. Manslaughter in the first degree is a lesser included offense of intentional second-degree murder because “ ‘the lesser offense . . . requires no proof beyond that which is required for conviction of the greater’ ” (People v Biggs, 1 NY3d 225, 230 [2003], quoting Brown v Ohio, 432 US 161,168 [1977]). Thus, first-degree manslaughter is the “same offense” for double jeopardy purposes (Blockburger v United States, 284 US 299, 304 [1932]), and prosecution for that offense is precluded by the Double Jeopardy Clause of both the United States Constitution and the New York State Constitution (Biggs, 1 NY3d at 231).
The Double Jeopardy Clause affords protection against prosecution for the same offense, whether after acquittal or after conviction; in addition, it protects against multiple punishments *154for the same offense (Biggs, 1 NY3d at 228-229, citing North Carolina v Pearce, 395 US 711, 717 [1969]).1 Of concern here, as in Biggs, is the protection against prosecution for the same offense following acquittal.
The majority’s attempt to distinguish this matter from Biggs is unavailing. In Biggs, the indictment charged the defendant, inter alia, with second-degree murder under both intentional (two counts) and depraved indifference (two counts) theories. The trial court found the evidence of intent insufficient and submitted to the jury only depraved indifference murder and, as a lesser included offense, second-degree manslaughter (two counts). The jury found the defendant not guilty on the murder counts but was unable to agree on the manslaughter charges, resulting in the declaration of a mistrial. The People then obtained an indictment against the defendant for manslaughter in the first degree (two counts) and manslaughter in the second degree (two counts), culminating in his conviction of first-degree manslaughter. The Court of Appeals reversed the judgment of conviction on constitutional double jeopardy grounds, reasoning that the intentional murder counts had been dismissed during the first trial for insufficient evidence—the equivalent of an acquittal for double jeopardy purposes—barring the defendant’s “subsequent prosecution for first degree manslaughter” (1 NY3d at 230). The Court stated:
“For double jeopardy purposes, intentional murder in the second degree and manslaughter in the first degree should be considered the same offense as no additional element of proof is required to sustain a conviction of first degree manslaughter beyond that which is required for second degree murder.
“Consequently, since defendant was acquitted of the intentional murder charges at his first trial, and manslaughter in the first degree is the same offense as murder in the second degree under Blockburger, the Double Jeopardy Clauses of both the Federal and State Constitutions precluded defendant’s *155subsequent indictment and prosecution for first degree manslaughter” (id. at 230-231).
In the matter at bar, as in Biggs, the trial court submitted to the jury two counts of second-degree murder under both intentional and depraved indifference theories. Also submitted were two counts of manslaughter in the first degree (intent to cause serious physical injury and extreme emotional disturbance). Defendant was acquitted of intentional murder and convicted of depraved indifference murder. The Court of Appeals reversed the judgment of conviction on the ground that the evidence was insufficient to sustain a finding of depraved indifference and remanded the matter to this Court for consideration of the appropriate remedy (6 NY3d 202, 216 [2005]).2
The question presented by both cases is identical: whether the defendant, having been acquitted of intentional murder, can be subjected to prosecution for first-degree manslaughter without offending the constitutional protection against double jeopardy. Clearly, Biggs is dispositive of the issue.3
In both Biggs and the matter at bar, the defendant was acquitted of intentional second-degree murder (in Biggs because that count was dismissed by the trial court, and here because the jury returned a verdict of not guilty).4 While the jury in Biggs acquitted the defendant of depraved indifference murder and deadlocked on the second-degree manslaughter charge, resulting in the declaration of a mistrial, the jury in this matter returned a final verdict of guilty on the depraved indifference *156murder charge, culminating in its reversal because the evidence was incompatible with that crime. Seizing upon this distinction, the majority reasons that, here, “trial error was found, the conviction overturned and the [depraved indifference murder] count dismissed, leaving unresolved the indicted manslaughter one count that, but for the trial error in submitting depraved indifference murder, would have been considered by the jury.” Thus, the majority concludes, the People are entitled to retry defendant for this lesser included offense under CPL 40.30 (3), which provides for “further prosecution of such offense under the same accusatory instrument.”
The majority’s reasoning is circular. As pertinent herein, CPL 40.30 (3) permits reprosecution under the same indictment where the prior proceedings have been “nullified by a court order . . . which directs a new trial of the same accusatory instrument.” It bears emphasis that this matter is before us on remand from the Court of Appeals to determine the “corrective action” to be taken following the reversal of defendant’s conviction for depraved indifference murder (6 NY3d at 216).5 What the majority’s analysis fails to consider is that unless and until, by order of this Court, the prior proceedings are “nullified” so as to warrant “a new trial of the accusatory instrument” (CPL 470.20 [1]), there exists no order contemplated by CPL 40.30 (3) lifting the statutory double jeopardy bar of CPL 40.20.
The majority’s analysis also fails to recognize that the trial error prompting reversal by the Court of Appeals did not affect defendant’s acquittal of intentional murder in the second degree and, by necessary implication following Blockburger, any lesser included offense. Reversal of a judgment of conviction on the basis of trial error warrants retrial only as to those offenses affected by the error. As stated in People v Goodman (69 NY2d 32, 39 [1986]),
“In the case of a mixed verdict, the defendant has been acquitted by the jury of some of the charges in a multicount indictment but, at the instance of defendant, the conviction has been set aside because of trial error. In that situation, the People are not foreclosed by either double jeopardy or collateral *157estoppel concerns from reprosecuting the defendant on the charge which resulted in conviction.”
In the instant matter, the trial error identified by the Court of Appeals concerns the charge of depraved indifference murder; no error is attributable to the verdict of acquittal returned by the jury on the charge of intentional murder in the second degree, and the acquittal stands as a final and valid judgment as to that count and a bar to further prosecution for that offense or any lesser or greater offenses requiring the same proof (Biggs, 1 NY3d at 230-231).
A similarly flawed analysis dooms the majority’s attempt to bring this case within the statutory provisions pertaining to the failure to return a verdict by a deadlocked jury (CPL 310.60) or the return of a partial verdict (CPL 310.70), to which this case is factually incongruous. Rather than confront the implications of the Biggs case as it concerns defendant’s acquittal for intentional murder, the majority postulates an analogy with the failure of the Biggs jury to return a verdict on manslaughter in the second degree. Because the Biggs jury’s inability to reach a verdict as to that offense permitted the defendant’s retrial thereon, the majority concludes that defendant herein can likewise be retried for manslaughter in the first degree because the jury did not return a verdict on that charge.6 The pertinent distinction, however, is that in Biggs the jury actually deliberated the second-degree manslaughter offense but was unable to reach a verdict, whereas here, following the court’s instructions, the jury did not even consider the first-degree manslaughter charge upon returning a guilty verdict on depraved indifference murder. Thus, while the verdict returned by the jury comported with the trial court’s instructions, as the majority observes, the proceedings resulted neither in the declaration of a mistrial due to the jury’s inability to render any verdict whatsoever nor in the court’s acceptance of a partial verdict. CPL 310.60 and 310.70 are therefore inapplicable, and retrial is not authorized under either statute.
People v Charles (78 NY2d 1044 [1991]), relied upon by the majority, is clearly distinguishable. There, an error of law *158required retrial of “three drug charges arising from the possession of cocaine and marihuana” (id. at 1046). The jury found the defendant guilty on the top count of the indictment (criminal possession of a controlled substance in the first degree) and so did not reach the two lesser counts. On appeal, the defendant contended that he could be “retried only on the one count of which he was found guilty, that double jeopardy prevents retrial on those counts of the indictment not considered by the jury” (id. at 1047). The Court of Appeals rejected this argument, noting that “the jurors had not considered the remaining counts as a result of the court’s instruction. Thus, jeopardy was never terminated by acquittal or dismissal of those counts” (id.).
The difference between Charles and the matter at bar should be apparent. In Charles, the jury convicted the defendant (as it transpired, erroneously) of the top count of the indictment and truly did not reach any lesser included offense. Here, by contrast, the jury acquitted defendant of the top intentional murder count, which was not overturned. The operative distinction is that jeopardy was terminated by defendant’s acquittal of intentional murder in the second degree, thus barring his retrial for the lesser included offense of manslaughter in the first degree (see Boyd, 77 F3d at 64 [“Double jeopardy prohibits subsequent prosecutions after the completion of a first jeopardy”]).7 Unlike Charles, there was no trial error with respect to the verdict rendered on the greater offense so as to permit defendant’s retrial on the lesser included offense.
The cases cited by the majority involving the return of a partial verdict are inapposite because reversal of one count of an indictment is simply not analogous to the failure of a jury to render a verdict on that charge in the first instance, whether due to the inability of the jurors to reach agreement on the particular count (People v Green, 96 NY2d 195 [2001]; People v Quamina, 236 AD2d 426 [1997]) or some other reason, such as the incapacity of a juror (People v Ryan, 19 NY2d 100 [1966]). A distinction must be observed between those situations in which the People are prevented from obtaining a verdict on all counts submitted to a jury in accordance with the instructions of the trial court (see People v Jackson, 20 NY2d 440, 449-450 [1967], cert denied 391 US 928 [1968]), resulting in a partial verdict fol*159lowing which retrial is permitted (CPL 310.70 [2]), and the circumstances attendant upon the present case, where trial culminated in a final verdict on all the counts on which the jurors were instructed to return a verdict. In the case of deadlock, retrial is limited to charges as to which “the proceedings were inconclusively terminated by the declaration of a mistrial following the jury’s inability to reach a verdict” (Mayo, 48 NY2d at 249). Triail proceedings herein were not inconclusively terminated by any such inability of the jury to reach a verdict on any charge submitted to it.
The matter before us is analytically similar to People v Johnson (14 AD3d 460 [2005]), in which the jury convicted the defendant of manslaughter in the second degree and gang assault in the first degree, acquitting him of manslaughter in the first degree. The trial court dismissed the count of first-degree gang assault as inconsistent with the acquittal of first-degree manslaughter (since both offenses require an intent to inflict serious physical injury).8 The conviction was subsequently vacated for trial error (Rosario and Brady violations), and the defendant was then retried and found guilty of gang assault in the second degree, a count that was included in the original indictment (id. at 461). On appeal, this Court rejected the People’s contention that the result of the first trial did not amount to an acquittal on the count of first-degree gang assault and that the defendant could therefore be retried for either first- or second-degree gang assault. We noted that “the earlier prosecution terminated with a final and valid judgment” (id. at 462, citing Goodman, 69 NY2d at 38) and held that the trial court’s order of dismissal was “tantamount to an acquittal of gang assault in the first degree,” protecting the defendant against further prosecution for that offense (id., citing Biggs, 1 NY3d at 229). We further held that the defendant could not be retried for gang assault in the second degree on the ground that, under Blockburger, it is the “same offense” for double jeopardy purposes as gang assault in the first degree.
*160As in Johnson, where the defendant “was acquitted of manslaughter in the first degree and . . . the People acquiesced in the judgment convicting him of manslaughter in the second degree” (14 AD3d at 461-462), amounting to an acquittal of first-degree gang assault, defendant herein was acquitted of intentional murder in the second degree, and the People acquiesced in a judgment convicting him of depraved indifference murder. Also, as in Johnson, the offense of which defendant was acquitted is the same offense for double jeopardy purposes as the offense for which retrial is sought under the same indictment (id.) and, under the same rationale, retrial is precluded by the bar against double jeopardy.
The majority’s professed concern that this analysis will preclude a jury’s consideration of a lesser included offense upon deciding to acquit a defendant of a greater offense (see People v Johnson, 87 NY2d 357, 360-361 [1996]) is unwarranted since the bar of double jeopardy applies only to “consecutive prosecutions for greater and lesser included offenses” (Biggs, 1 NY3d at 230), not to a jury’s assessment of guilt in the course of a single prosecution. The jury’s acquittal of defendant on the charge of second-degree intentional murder constitutes an absolute bar to his subsequent prosecution for the same offense, for double jeopardy purposes, of first-degree manslaughter (Corey, 917 F2d at 89-90) because jeopardy ended when final judgment was rendered (see Boyd, 77 F3d at 63-64). Reversal of defendant’s conviction renders the judgment nonfinal only as to those charges that are lesser included offenses of depraved indifference murder, and retrial is limited to such offenses (Charles, 78 NY2d at 1047).
While the result of this exposition is that a defendant convicted of second-degree murder may go free because the verdict was predicated on the wrong theory, this outcome is an unavoidable consequence of the significant transformation of the element of depraved indifference over a period of several years (see Policano v Herbert, 7 NY3d 588, 602-603 [2006]) from an objective criterion based on degree of risk (People v Sanchez, 98 NY2d 373 [2002]) to a subjective standard premised on mens rea (People v Feingold, 7 NY3d 288, 296 [2006]). This Court is constrained by the constitutional protection against double jeopardy from directing retrial for manslaughter in the first degree. As observed in the concurring opinion by three Court of Appeals Judges in this matter,
“In overturning convictions in such cases, the Court *161. . . performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime” (6 NY3d at 217).
Accordingly, the judgment of conviction should be vacated and the indictment dismissed.
Andrias, Sullivan and Gonzalez, JJ., concur with Williams, J.; Tom, J.P., dissents in a separate opinion.
Upon remittitur from the Court of Appeals, judgment, Supreme Court, Bronx County, rendered January 30, 2002, reversed, on the law, count two charging murder in the second degree dismissed and the matter remanded for trial on the unresolved charge of manslaughter in the first degree.
. “The prohibition on double jeopardy protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense” (Boyd v Meachum, 77 F3d 60, 63 [2d Cir 1996], cert denied sub nom. Boyd v Armstrong, 519 US 838 [1996], citing Pearce). “For purposes of double jeopardy, a greater offense is the ‘same offense’ as any lesser included offense, and vice versa” (id., citing Brown v Ohio, 432 US 161, 168 [1977]).
. The Court observed that while the jury might properly have found defendant to have intended either to cause the victim’s death or to inflict serious physical injury, his actions “in no way reflected a depraved indifference to her fate” (6 NY3d at 216).
. The Double Jeopardy Clause forbids not merely indictment but prosecution for the same offense (see Biggs, 1 NY3d at 229, citing Smalis v Pennsylvania, 476 US 140, 142 [1986]; Burks v United States, 437 US 1, 18 [1978]; and People v Mayo, 48 NY2d 245, 249 [1979]). Thus, it is immaterial that in Biggs the defendant was retried for manslaughter in the first degree under a new indictment. The bar of double jeopardy applies whether the defendant is prosecuted under the original or a subsequent indictment (see e.g. Corey v District Ct. of Vt., Unit # 1, Rutland Circuit, 917 F2d 88, 89-90 [2d Cir 1990] [double jeopardy constitutes an “unequivocal bar against a second trial after a judgment of acquittal”]).
. Similarly, in People v Owens (227 AD2d 256 [1996], lv denied 88 NY2d 991 [1996], cert denied 520 US 1224 [1997]), the dismissal of the sole count of first-degree robbery was held to be tantamount to an acquittal, thereby barring subsequent prosecution for the lesser included offense of third-degree robbery.
. This determination is guided by CPL 470.20, but its rules are not intended “to specifically cover the universe of possible situations” including, as here, the reversal of one but not all counts of a multicount indictment (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 470.20, at 671).
. On the first trial in Biggs, the jury deadlocked on the second-degree manslaughter charges, leaving the question of the defendant’s guilt unresolved. On the second trial, the jury did not reach these charges in accordance with the court’s instruction not to consider them if a guilty verdict was returned on the first-degree manslaughter counts. Thus, upon reversing the second conviction, the Court of Appeals remanded the matter for a new trial as to the second-degree manslaughter counts of the indictment (1 NY3d at 228, 231).
. Conceptually, reversal of a conviction on the top count of an indictment affects only that count, whereas acquittal on a count of an indictment is tantamount to acquittal on all lesser and greater offenses requiring the same proof for conviction.
. In Johnson, this Court upheld the dismissal of first-degree gang assault on collateral estoppel grounds, reasoning that conviction of second-degree manslaughter, requiring only recklessness, and acquittal of first-degree manslaughter, requiring intent to cause serious physical injury, “necessarily negated” that element of first-degree gang assault, noting that “the People were afforded a full and fair opportunity to litigate the issue of defendant’s intent to inflict serious physical injury upon the victim” (Johnson, 14 AD3d at 462). Our decision in People v Rodriguez (33 AD3d 543, 544 [2006]) does no more than acknowledge that rationale; it does not intimate that Johnson was “incorrectly decided,” as the majority suggests.