Majority
p. 450The People of the State of New York, Respondent, v William Hawkins, Appellant. [643 NYS2d 634]
p. 451
The defendant was not subjected to double jeopardy when he was retried after his first trial under Indictment No. 1506/93 ended in a mistrial. While the defendant did not expressly consent to the mistrial, his consent may be implied from the circumstances which led to the court’s decision to declare a mistrial (see, People v Ferguson, 67 NY2d 383 ; People v Barreto, 149 AD2d 428 ). Defense counsel did not voice his opposition to a mistrial when he actively participated in the colloquy in which the jury’s ability to reach a verdict was discussed, and did not register any form of opposition when the court subsequently declared a mistrial (see, People v Lilly, 187 AD2d 674 , 675). Accordingly, the defendant’s consent to the mistrial may be implied from the totality of the circumstances (see, People v Ferguson, supra).
The defendant failed to preserve for appellate review his contention that reversal is warranted due to error in the trial court’s charge (see, CPL 470.05 [2]; People v Thomas, 50 NY2d 467 ; People v Udzinski, 146 AD2d 245 , 250; People v Price, 144 AD2d 1013 ; People v Fisher, 112 AD2d 378 ; People v Thompson, 107 AD2d 772 ). In any event, the court’s charge as a whole adequately apprised the jury of the standard they were to apply (see, People v Canty, 60 NY2d 830 , 831-832; People v Reyes, 207 AD2d 362 ).
The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Ritter, J. P., Pizzuto, Santucci and Krausman, JJ., concur.
Cases cited
- People v. Ferguson 67 NY2d 383 p. 451
- People v. Barreto 149 AD2d 428 p. 451
- People v. Thomas 50 NY2d 467 p. 451
- People v. Udzinski 146 AD2d 245 at 250 p. 451
- People v. Price 144 AD2d 1013 p. 451
- People v. Canty 60 NY2d 830 at 831-832 p. 451