People v. Hawkins

• Decision Date: 03 June 1996
• Citation: 643 N.Y.S.2d 634,228 A.D.2d 450
• Parties: The PEOPLE, etc., Respondent, v. William HAWKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 634

643 N.Y.S.2d 634

228 A.D.2d 450

The PEOPLE, etc., Respondent, v. William HAWKINS, Appellant.

Supreme Court, Appellate Division Second Department.

June 3, 1996.

Laura Saft, Brooklyn, for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Nancy F Talcott, and Philip C. Semprevivo, of counsel), for respondent.

Before RITTER, J.P., and PIZZUTO, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Miller, J.), rendered September 15, 1993, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence under Indictment No. 1506/93, and (2) an amended judgment of the same court (Tomei, J.), rendered September 20, 1993, revoking a sentence of probation previously imposed by the same court upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted robbery in the second degree under Indictment No. 2621/91.

ORDERED that the judgment and amended judgment are affirmed.

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 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77; People v. Barreto, 149 A.D.2d 428, 539 N.Y.S.2d 771). 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 A.D.2d 674, 675, 590 N.Y.S.2d 253). 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 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430; People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9; People v. Price, 144 A.D.2d 1013, 535 N.Y.S.2d 281; People v. Fisher, 112 A.D.2d 378, 491 N.Y.S.2d 833; People v. Thompson, 107 A.D.2d 772, 484 N.Y.S.2d 609). In any event, the...