People v. Hawkins

228 A.D.2d 450, 643 N.Y.2d 634, 643 N.Y.S.2d 634, 1996 N.Y. App. Div. LEXIS 6185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 1996
• Status: Published

Opinion

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.