Sanchez v. Tomei

Proceeding pursuant to CPLR article 78 to prohibit a retrial of the petitioner pursuant to Kings County Indictment No. 5314/93, on the ground that the retrial would violate his right not to be placed twice in jeopardy for the same offense.

Adjudged that the petition is denied, without costs or disbursements, and the proceeding is dismissed on the merits.

At the petitioner’s first trial, a Judge accepted a partial verdict and declared a mistrial with respect to the counts upon which the jury could not reach a verdict. Retrial of the petitioner on the remaining counts would not violate his right not to be placed twice in jeopardy for the same offense. While the petitioner did not expressly consent to the mistrial, his consent may be implied from the totality of the circumstances *741(see, People v Ferguson, 67 NY2d 383; People v Lilly, 187 AD2d 674). In any event, since the Judge received several notes from the jury indicating its inability to reach a verdict after extended deliberations, the court properly exercised its discretion in determining that the jury was not likely to reach a verdict within a reasonable time, and in declaring a mistrial (see, Matter of Plummer v Rothwax, 63 NY2d 243; People v Lilly, 187 AD2d 674, supra; People v Barreto, 149 AD2d 428). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.