dissent in part in a memorandum by Tom, J.P., as follows: My dissent is confined to the majority’s remand for further prosecution on the count of manslaughter in *361the first degree. That disposition violates the constitutional protection against double jeopardy.
“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]). The Double Jeopardy Clause, as pertinent herein, bars further prosecution unless the crime of which defendant was acquitted and the crime for which he is to be retried are distinct offenses. Under Blockburger v United States (284 US 299, 304 [1932]), the test is “whether each provision requires proof of a fact which the other does not.”
For double jeopardy purposes, first-degree manslaughter is the same offense as 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]). It is clear that acquittal on a count of an indictment—including its dismissal on the ground of insufficient evidence—“protects a defendant against additional prosecution for such count” (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, following defendant’s acquittal of intentional murder, the Double Jeopardy Clause bars his prosecution for first-degree manslaughter whether he is again tried under the original indictment or under a subsequent indictment (see e.g. Corey v District Ct. of Vt., Unit No. 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”]).
While I disagree that defendant is subject to further prosecution for manslaughter in the first degree, I concur that he is subject to prosecution on the felony murder count despite some lingering uncertainty as to whether it is the same offense, under Blockburger, as intentional murder. The uncertainty persists because the Court of Appeals, while noting that its decision in People v Leonti (18 NY2d 384 [1966], cert denied 389 US 1007 [1967]) “lends support to the theory that felony murder and premeditated murder are two offenses . . . , has never directly decided whether felony murder and premeditated murder constitute a single offense or multiple offenses for the purposes of double jeopardy” (People v Jackson, 20 NY2d 440, 451 [1967], cert denied 391 US 928 [1968]). While the Court purported not to decide the question in Jackson, upon habeas review, the *362Second Circuit stated that the Court of Appeals had indeed construed former New York Penal Law § 1044 “to mean, in effect, that premeditated and felony murder constitute but a single offense” (United States ex rel. Jackson v Follette, 462 F2d 1041, 1048 [2d Cir 1972], cert denied 409 US 1045 [1972]). However, later New York cases have adhered to Leonti, construing the crimes as distinct offenses (see e.g. People v Daniels, 35 AD3d 756 [2006]; People v Wade, 146 AD2d 589, 590 [1989], lv denied 73 NY2d 1023 [1989]).
In this case, as in Jackson (20 NY2d at 451-452), the trial court instructed the jury to consider the submitted crimes “in the alternative, not the order in which I charged them,” stating that if the jury found defendant guilty, “it may be only as to one of the crimes, not more than.” The jury acquitted defendant of first-degree murder and second-degree intentional murder, finding him guilty of second-degree depraved indifference murder; however, the jury did not have occasion to consider the felony murder count (Jackson, 20 NY2d at 452 [“Since the jury was instructed to render only one verdict, it had no reason to consider the felony murder charge once it found the defendant guilty of premeditated murder”]). Thus, “[w]e cannot say that the jury’s silence on the felony murder theory had the effect of acquitting [defendant] of that theory” (id.), and no acquittal bars defendant’s further prosecution for felony murder. In sum, except for the conviction for depraved indifference murder, which has been reversed, and the offenses of which defendant has been acquitted, including the count of manslaughter in the first degree as a lesser included offense of intentional second-degree murder, defendant may be prosecuted for the remaining counts in the indictment.