May a court resubmit dismissed counts upon retrial if the convicted counts are vacated upon defendants CPL 440 motion?

Generally, particular counts of an indictment which are not submitted to a jury are deemed dismissed under CPL 300.40(7). Thus, where a defendant is charged in a multi-count indictment, counts which are not charged to the jury are considered to have been dismissed and should there be a retrial occasioned by the jury's inability to arrive at a unanimous verdict, the unsubmitted counts cannot be revived.

A different result would be compelled if conviction were set aside on defendant's own CPL 440 motion. In that limited situation, all counts of the original indictment are preserved for retrial, including those which had been dismissed by not being given over to the jury. …