Opinion
October 14, 1946.
The defendant was tried under an indictment making separate charges in four counts. The jury found him guilty of the charges set forth in the fourth count, and remained silent as to the others. Upon defendant's appeal from the judgment of conviction this court reversed and ordered a new trial. ( People v. Migliori, 269 App. Div. 996.) Thereafter defendant moved to dismiss the first three counts in the indictment. The motion was denied, and upon a motion for reargument the motion was again denied. Appeal from the order of the County Court, Richmond County, denying defendant's motion for an order for a reargument, and for an order dismissing the first three counts in the indictment, dismissed. No appeal from this order is authorized by section 517 of the Code of Criminal Procedure. We are of opinion that the charges under the first three counts in the indictment should not be submitted to the jury on the new trial. The effect of the jury's silence as to the first three counts was to acquit the defendant of those charges. ( People v. Dowling, 84 N.Y. 478; Guenther v. People, 24 N.Y. 100.) The reversal of the judgment convicting the defendant of the charge in the fourth count in the indictment did not result in the nullification of his acquittal on the first three charges; nor do the provisions of sections 464 and 544 of the Code of Criminal Procedure allow the prosecution of these charges at a new trial. Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.