I disagree and would remand for a new trial. CPL 310.50, to the extent pertinent, provides:
‘11. The form of the verdict must be in accordance with the court’s instructions, as prescribed in article three hundred.
“2. If the jury renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict. If the jury persists in rendering a defective or improper verdict, the court may in its discretion either order that the verdict in its entirety as to any defendant be recorded as an acquittal, or discharge the jury and authorize the people to retry the indictment or a specified count or counts thereof as to such defendant; provided that if it is clear that the jury intended to find a defendant not guilty upon any particular count, the court must order that the verdict be recorded as an acquittal of such defendant upon such count.”
The difficulties in this case arose by virtue of the manner of submission of the charges to the jury and the court’s instruction as to how it should proceed.
Specifically, the jurors were advised that counts 2 and 3 (criminal possession of a dangerous drug in the fourth degree with intent to sell and criminal possession of a dangerous drug in the third degree) were lesser included offenses of count 1 (criminally selling a dangerous drug in the third degree). *107Accordingly, they were instructed to consider the counts in specified sequence (count one, then count three, then count two) and to stop deliberating further after they reached a guilty verdict on any one count.
The Trial Judge erred in such instructions since (under the former Penal Law provisions which govern this case) the first and third counts charged crimes of equal gravity; whereas the second count, as contained in the indictment, was only a lesser included offense of the first count, but not the third. Moreover, on the evidence adduced, there is even a serious question as to whether the second count should have been submitted to the jury at all.
In any event, the jury disregarded the court’s instructions and returned verdicts of guilty on the first and second counts and acquitted defendant on the third. The court then returned the case to the jury for reconsideration, whereupon completely reversed verdicts were returned.
In our view, the consequences of such confusion should be a new trial and not an acquittal of all charges.
Subdivision 1 of CPL 310.50 was intended to replace a multiplicity of provisions in the former Code of Criminal Procedure dealing with “ general ” and “ special ” verdicts. (See Denzer, Practice Commentary to CPL 310.50, McKinney’s Cons. Laws of N. Y., Book 11A, p. 593.) The form of verdict is required to be in accordance with the court’s instructions, as prescribed in CPL 300.10 et seq.; and compliance with article 300 is presumed. The possibility of judicial error, as here occurred, is not envisioned.
Finally, and even if CPL 310.50 is applicable, under the circumstances of this case and in view of the verdicts rendered, I cannot conclude that it is “ clear ” that the jury intended to find the defendant not guilty upon any particular count. On the contrary, the only clear intent of this misled and confused jury was that it did not want the result reached by the majority — exoneration of all charges. Accordingly, I would remand for a new trial; the same relief, incidentally, as was directed in Owens v. State (40 Ga. App. 508), cited by the majority.
Lupiano and Lane, JJ., concur with Capozzoli, J.; Kójpfeeman, J. P., and Muephy, J., dissent in separate opinions.
Judgment, Supreme Court, Bronx County, rendered on June 8,1973, reversed, on the law, and the indictment dismissed.