OPINION OF THE COURT
Williams, J.
The Court of Appeals remitted this matter to this Court (6 NY3d 202 [2005]) for consideration of the appropriate remedy after reversing defendant’s conviction for depraved indifference murder (Penal Law § 125.25 [2]) on the grounds that it was error to submit that count to the jury since the evidence was legally insufficient to support it. Suarez is one of a recent series of Court of Appeals decisions (see e.g. People v Feingold, 7 NY3d 288 [2006]; People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005], questions certified to NY Ct App 453 F3d 75 [2d Cir 2006]) that seek to provide a clearer understanding of the criminal liability contemplated by the term “depraved indifference” and thereby to foster appropriate use of criminal charges based upon this theory. The question of remedy is a critical and potentially recurring issue, given the widespread use of the depraved indifference murder statute in recent years.
The relevant facts at this point are as follows. On the evening of February 22, 2000, defendant caused the death of Jovanna Gonzalez, the woman with whom he cohabited and who was the mother of his infant daughter, by stabbing her in the throat, chest and abdomen after a heated argument in their apartment. He was charged with two counts of murder in the second degree (intentional and depraved indifference), manslaughter in the first degree and criminal possession of a weapon in the fourth degree. His trial testimony raised the issues of whether the justification defense was implicated, whether extreme emotional [145] disturbance was implicated and whether his intent was to cause death. The four counts submitted to the jury were murder in the second degree (intentional), manslaughter in the first degree (intentional but reduced because of extreme emotional disturbance), murder in the second degree (depraved indifference) and manslaughter in the first degree (with intent to cause serious injury). The jury was instructed pursuant to CPL article 300, inter alia, as to the proper order to consider the charges, and that a finding of guilty on a charge should end deliberations. Consequently, the jury acquitted defendant of intentional murder, convicted him of depraved indifference murder, and ceased deliberations without considering either count of manslaughter in the first degree.
On appeal, defendant argued that his conviction of depraved indifference murder was not proven by legally sufficient evidence since the conduct was proven to be intentional, not reckless, because the victim was the sole object of the assault and was stabbed three times. This Court affirmed the conviction (13 AD3d 320 [2004]).
Upon granting defendant leave to appeal, the Court of Appeals reversed. In its opinion, it discussed at length the theory and elements of depraved indifference murder and distinguished it from intentional (first-degree) and reckless (second-degree) manslaughter. It concluded that the circumstances are rare in which “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered” (6 NY3d at 212), that (after providing three examples of such circumstances, none of which resembles the circumstances'at issue) “[w]here comparable facts are not shown ... a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation” (id. at 213), and that depraved indifference murder should very rarely be submitted to a jury, either in tandem with intentional homicide or alone (id. at 215-216). Based on this reasoning, the Court further concluded that defendant’s actions were intentional, and “in no way reflected a depraved indifference to [the victim’s] fate” (id. at 216). However, the Court declined to address the question of remedy, since the parties had argued only the merits of the case, and remitted that issue to this Court “for full briefing and consideration and ... to exercise its corrective action powers under CPL 470.20” (id.).
The primary issue to be addressed here is whether, given defendant’s acquittal of intentional murder and the Court of [146] Appeals’ reversal of defendant’s conviction of depraved indifference murder, the Double Jeopardy Clauses of the Federal and State Constitutions, New York Criminal Procedure Law double jeopardy provisions and/or the doctrine of collateral estoppel bar defendant from now being tried for intentional manslaughter in the first degree, a charge included in the indictment, and submitted to but not considered by the jury.
The tenor of the Court of Appeals’ decision in this case is that the trial court erroneously submitted the depraved indifference murder count to the jury, since it was not supported by legally sufficient evidence. CPL 300.40 provides:
“The court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal. . . .
“5. If an indictment contains two inconsistent counts, the court must submit at least one thereof. If a verdict of guilty upon either would be supported by legally sufficient trial evidence, the court may submit both counts in the alternative . . . .”
This trial error, in combination with New York’s “acquit first” rule, which governs the order in which a jury must be charged to conduct its deliberations when lesser included offenses are submitted—i.e., the offenses must be considered in decreasing order of culpability, acquittal of all greater offenses before consideration of any lesser included offenses (People v Johnson, 87 NY2d 357 [1996]; People v Boettcher, 69 NY2d 174 [1987]; see also Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 300.50, at 251-252)—resulted in the jury’s inability to reach either charge of manslaughter in the first degree, which is a lesser included charge of intentional murder in the second degree. Specifically, once the trial court erroneously determined that the depraved indifference murder count should be submitted to the jury along with the inconsistent intentional murder count, the court was required to do so in the alternative, that is, the jury had to be instructed that it could only convict defendant of one or the other, but not both. The jury had to be further instructed, in accordance with JohnsonBoettcher, that only if it voted to acquit on both murder counts could it consider the lesser included “manslaughter one” of[147] fense and that it should cease further deliberations upon reaching a guilty verdict upon any count (see People v Helliger, 96 NY2d 462 [2001]; Johnson, 87 NY2d at 359-361). The record shows that the trial court correctly gave these instructions, and the jury is presumed to have followed them (see People v Divine, 21 AD3d 767 [2005], affd 6 NY3d 790 [2006]), notwithstanding defendant’s unsubstantiated allegations concerning the verdict sheet (see People v Boatwright, 297 AD2d 603 [2002], lv denied 99 NY2d 533 [2002]). However, the result was that the charges of manslaughter in the first degree, submitted to the jury, were never considered. Had the trial court not erroneously submitted depraved indifference murder, the jury would have been required to consider intentional manslaughter once it acquitted defendant of intentional murder.
The Double Jeopardy Clause (US Const 5th Amend) provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It protects against three general governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense (North Carolina v Pearce, 395 US 711, 717 [1969]). The Due Process Clause of the 14th Amendment extends these protections to the states (see Benton v Maryland, 395 US 784 [1969]). The New York Constitution (art I, § 6) affords similar protection. However, “[decisions by [the US Supreme] Court have consistently recognized that the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law” (Garrett v United States, 471 US 773, 796 [1985, O’Connor, J., concurring]). Moreover, “[permitting retrial ... is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to 'obtai[n] a fair readjudication of his guilt free from error’ ” (Lockharí v Nelson, 488 US 33, 42 [1988]).
CPL 40.30 provides:
“1. Except as otherwise provided in this section, a person ‘is prosecuted’ for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either: . . .
“(b) Proceeds to the trial stage and a jury has been [148] impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn. . . .
“3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.”
Thus, under circumstances where a lesser included charge was properly submitted to the jury, but, as in this case, was never considered due to trial error or, by way of analogy, in a mistrial or partial verdict situation, a verdict on the charge was never reached (see e.g. CPL 310.60 [2]; 310.70 [2]), New York courts have held that double jeopardy does not preclude prosecution of such charges; defendant’s jeopardy as to such charges is deemed not to have been terminated (People v Charles, 78 NY2d 1044 [1991] [where jury, as instructed, did not consider remaining counts after convicting on first count, trial on remaining counts not precluded by Federal Constitution since jeopardy was never terminated by acquittal or dismissal]; see also People v Green, 96 NY2d 195 [2001] [retrial on lesser included offenses not barred by double jeopardy where they were submitted in original trial to jury which was unable to reach a verdict]; People v Quamina, 236 AD2d 426 [1997] [acquittal on second-degree weapon possession counts did not bar retrial on third-degree weapon possession counts on which jury was unable to reach a verdict]).
These situations are distinguishable from People v Biggs (1 NY3d 225 [2003]), where the defendant was tried on two counts each of second-degree intentional murder and second-degree depraved indifference murder arising from the same criminal transaction. At the close of evidence, the trial court advised the parties that there was insufficient proof on the intentional murder counts and did not submit them to the jury. The court then submitted to the jury the depraved indifference murder counts and, in the alternative, two counts of second-degree reckless manslaughter as a lesser included crime. The jury acquitted on the depraved indifference murder counts and was unable to reach a verdict on the second-degree manslaughter counts. Prior to any retrial, the defendant was subsequently reindicted and charged with two counts of first-degree intentional manslaugh[149] ter as well as the unresolved second-degree manslaughter counts. The defendant’s motion to dismiss the higher counts on double jeopardy grounds, due to the previously dismissed intentional murder counts, was denied because first-degree manslaughter was not considered by the first jury or contained in the original indictment. At the retrial, all four manslaughter counts were submitted to the jury in the alternative, and upon convicting him of the first-degree counts, the jury, pursuant to proper instruction, did not consider the second-degree counts. On appeal, the Second Department affirmed (298 AD2d 398 [2002]), holding that since first-degree manslaughter had not been charged in the indictment or submitted to the jury in the first trial, jeopardy had never attached. The Court of Appeals reversed, holding that the record clearly showed the trial court’s refusal to submit the intentional murder counts in the first trial amounted to a dismissal of those counts, that intentional manslaughter, a lesser included of those counts, was the same crime for constitutional double jeopardy purposes, and therefore, “the Double Jeopardy Clauses of both the Federal and State Constitutions precluded defendant’s subsequent indictment and prosecution for first degree manslaughter” (1 NY3d at 231 [emphasis added]).
Hence, in Biggs, after dismissal and acquittal of the respective intentional and the depraved indifference murder counts, the trial ended with the jury unable to reach a verdict on the “lesser included” second-degree manslaughter counts (1 NY3d at 228). There was no reversible trial error. Thus, the People were entitled to retry the defendant on those two counts pursuant to CPL 310.70 (2). However, in addition to those counts, the People sought, upon re-presentation to a grand jury, the new and more serious first-degree manslaughter counts. This violated several double jeopardy principles, since these counts could have been charged in the first indictment, but were neither charged nor submitted to the jury (see CPL 40.40 [2]), they exposed the defendant to greater jeopardy than what he faced at the conclusion of the first trial, and they constituted the same offense, for double jeopardy purposes, as the intentional murder counts of which he was acquitted in the first trial. Two of these elements were also present in People v Owens (227 AD2d 256 [1996], lv denied 88 NY2d 991 [1996], cert denied 520 US 1224 [1997]), which defendant relies upon in seeking to preclude his reprosecution.
In the case at bar, the only similarity to Biggs is that there was also an acquittal of intentional murder counts charged in [150] the alternative to depraved indifference murder counts. Here, defendant was convicted of depraved indifference murder, trial error was found, the conviction overturned and the 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. Since, unlike in Biggs, the People only seek to prosecute this remaining unresolved count, as charged in the indictment, which they may do pursuant to CPL 40.30 (3), they are entitled to such relief. At this point, defendant is subject to none of the perils present in Biggs.
The holding of Biggs, which the dissent misconstrues, is clear: “The Double Jeopardy Clause precludes consecutive prosecutions for greater and lesser included offenses where, ‘the lesser offense . . . requires no proof beyond that which is required for conviction of the greater’ ” (Biggs, 1 NY3d at 230 [citations omitted and emphasis added]). Here, a new trial of the unresolved charge of first-degree manslaughter under the original indictment does not constitute a consecutive prosecution and is statutorily authorized (CPL 40.30 [3]). If the dissent’s view were to prevail, a jury could never consider a lesser included offense in the alternative, after acquitting the defendant of the greater offense because of double jeopardy concerns. Thus, in an indictment charging two counts as, for example, second-degree murder (intentional) and first-degree manslaughter (Penal Law 125.20 [1]), a jury could not consider the latter after acquitting the defendant of the second-degree murder charge since, as a lesser included offense, it “requires no proof beyond that which is required for conviction of the greater” (Brown v Ohio, 432 US 161, 168 [1977]; see also People v Wood, 95 NY2d 509, 514 [2000]). Such a result is manifestly at odds with more than a century of well-settled law (see People v Willson, 109 NY 345 [1888]). When a jury finds a defendant not guilty of the degree charged in the indictment, it is authorized to find him guilty of any inferior degree (CPL 300.50), thus completing the prosecutorial process.
What Brown precludes is the successive prosecution and/or cumulative punishment of the same offense, as defined by Block-burger v United States (284 US 299 [1932]). Defendant is not being successively prosecuted or, if ultimately convicted, subjected to cumulative punishment. For these reasons, we believe, respectfully, that People v Johnson (14 AD3d 460 [2005]), relied upon by the dissent, which did not involve sue[151] cessive prosecutions but rather a trial of an unresolved, originally charged offense, was incorrectly decided, as we implicitly recognized in People v Rodriguez (33 AD3d 543 [2006]).
People v Charles (78 NY2d 1044 [1991], supra), contrary to the dissent’s view, is consistent with our holding here that double jeopardy does not preclude retrial of the lesser included first-degree manslaughter count. That Court, in reversing defendant’s conviction on appeal and granting a new trial, held that because the jurors, pursuant to the trial court’s instructions, did not consider the remaining counts after finding the defendant guilty of the top count, jeopardy never terminated on those counts. Similarly here, jeopardy never terminated on the remaining first-degree manslaughter count. As noted above, but for the erroneous submission of depraved indifference murder, and consistent with the court’s proper instruction, the jurors would have proceeded to consider that count after acquitting defendant on the intentional murder count. Under these circumstances, the Court of Appeals’ decision simply restores defendant to the situation in which he would have been had the trial error not been made; it does not place him in a better situation, i.e., by barring prosecution of the unresolved count.
Moreover, our analogy to those situations where a count was never considered or a verdict never reached is not inapt here. In those circumstances, the statutory objective is, once again, to restore the defendant to the same situation he would have been in had the trial process functioned properly. Thus, the dissent’s claim that for purposes of this case, the language in CPL 310.70 (2) (a) precluding retrial where a “verdict of conviction thereon would have been inconsistent with a verdict[ ] of . . . acquittal [ ] actually rendered with respect to some other offense” would preclude retrial here, is incorrect because a verdict of conviction on the first-degree manslaughter count would not be inconsistent with the verdict of acquittal on the second-degree intentional murder count in this instance. Indeed, implicit in the notion of charging and submitting lesser included offenses and having a jury consider offenses in decreasing order of culpability is that it may decide to acquit of a higher count and convict on a lesser one. The rigid application of the double jeopardy bar imagined by the dissent would apparently foreclose this option in a substantial number of cases where there is reversal on an appeal.
Furthermore, the dissent’s assertion that on a reversal of a conviction for trial error, retrial is warranted only as to those [152] offenses affected by the error, finds no support in CPL 40.30 (3) or People v Goodman (69 NY2d 32 [1986]). Goodman, which addresses a collateral estoppel issue—whether the argument of evidentiary facts necessarily established in the defendant’s favor at his first trial should be barred in a retrial—as opposed to one of double jeopardy in the context of a mixed verdict wherein there were no unresolved counts, does not state or suggest in any way that an unresolved count of an indictment cannot be retried because of double jeopardy concerns.
In People v Gonzalez (61 NY2d 633 [1983]), a mistrial was followed by a retrial ending in a mixed verdict wherein there were no unresolved counts. The defendant was acquitted of second-degree murder and assault and convicted of the submitted lesser included charge of first-degree manslaughter and second-degree criminal possession of a weapon. The reason the defendant could not be reprosecuted for first-degree manslaughter, after reversal of his conviction on appeal and remand with a direction for a new trial only on the second-degree criminal possession of a weapon charge, was that the manslaughter charge was an uncharged but submitted lesser included offense of the indicted second-degree murder charge; hence, once he was acquitted of the latter, “there was thus nothing remaining to support further criminal prosecution for manslaughter under that accusatory instrument” (id. at 635). Interestingly, however, while the first-degree manslaughter charge was dismissed, the dismissal was without prejudice to re-presentation of any appropriate charge to another grand jury.
Contrary to defendant’s assertions, collateral estoppel would not bar reprosecution. “Before collateral estoppel may be applied in a subsequent criminal case, there must be an identity of parties and issues and a prior proceeding resulting in a final and valid judgment in which the party opposing the estoppel had a ‘full and fair opportunity’ to litigate” (Goodman, 69 NY2d at 38 [citations omitted]). Here, where the judgment that defendant relies upon was reversed on appeal, and hence does not constitute “a final and valid judgment,” the jury’s factual findings lose their preclusive effect (People v Brown, 59 AD2d 928 [1977]; see also People v Plevy, 52 NY2d 58, 69 [1980, Fuchsberg, J., concurring]; Matter of McGrath v Gold, 36 NY2d 406, 412 [1975]).
Moreover, since intentional manslaughter does not have the element that the Court of Appeals found lacking to sustain a conviction for murder in the second degree, i.e., circumstances [153] evincing a depraved indifference to human life, collateral estoppel should not bar a new trial on the pending intentional manslaughter charge. Also, given that the jury never had the opportunity to consider the intentional manslaughter count due to trial error, a consideration of the “realities of the . . . litigation” reveals that the party opposing estoppel (the People) never had a “full and fair” opportunity to litigate the issue of whether defendant had the intent to cause the victim serious physical injury (see People v Roselle, 84 NY2d 350, 357 [1994]; Plevy, 52 NY2d at 65; Goodman, 69 NY2d at 38).
Accordingly, on remittitur for consideration of an appropriate remedy from the Court of Appeals, the judgment of Supreme Court, Bronx County (Harold Silverman, J.), rendered January 30, 2002, convicting defendant, after a jury trial, of murder in the second degree and sentencing him to a term of 20 years to life, should be reversed, on the law, count two charging murder in the second degree (Penal Law § 125.25 [2]) dismissed and the matter remanded for trial on the unresolved charge of manslaughter in the first degree.