People v. Hawkins

Jun 3, 1996
Versions:228 A.D.2d 450
643 N.Y.S.2d 634
643 N.Y.2d 634
1996 N.Y. App. Div. LEXIS 6185

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.