The Third Department, reversing defendant’s conviction, determined the second superseding indictment, procured after a mistrial, was a nullity:
Before trial commenced, the People obtained a superseding indictment … . A jury trial on the superseding indictment ensued; however, after the jury was impaneled and sworn, defendant’s motion for a mistrial was granted. The People subsequently obtained a second superseding indictment … . …
… [T]he second superseding indictment is a nullity and assert, therefore, that defendant’s conviction must be reversed and the matter remitted for further proceedings on the first superseding indictment. In declaring a mistrial, County Court did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment, and the second superseding indictment was a nullity … . Where, as here, an indictment is a nullity, “any action or consequence that flowed from its filing . . . was necessarily a nullity as well”… . Accordingly, the judgment must be reversed. People v Moseley, 2019 NY Slip Op 03408, Third Dept 5-2-19