This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 158
In the Matter of Estevan Gentil,
            Respondent,
        v.
Hon. Ira Margulis, &c.,
            Respondent,
Hon. Richard A. Brown, &c.,
            Appellant.




          Nancy Fitzpatrick Talcott, for appellant.
          Garnett H. Sullivan, for respondent Gentil.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
without costs, and the petition dismissed.
          After one juror was found unable to serve, defendant
refused to substitute an alternate juror and requested a partial

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verdict on the one count on which the jury had indicated it had
reached a verdict.   The Appellate Division granted the petition
on the basis that there was no manifest necessity for a mistrial
and did not address the issue of consent.   Because defendant
implicitly consented to a mistrial on two of three counts by
requesting a partial verdict and by saying nothing about the
court's plans for retrial (People v McFadden, 20 NY3d 260 [2012];
Matter of Marte v Berkman, 16 NY3d 874 [2011]), we need not reach
the issue of manifest necessity.




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Matter of Gentil v Margulis
No. 158




FAHEY, J. (concurring):
                I agree with the majority that the order of the
Appellate Division should be reversed, but for a different
reason.   A defendant's consent to a mistrial, and concomitant
waiver of double jeopardy protection, "may . . . be implied from
the circumstances leading up to the dismissal of the jury"
(People v Ferguson, 67 NY2d 383, 388 [1986]).    This Court has
held, however, that whether a defendant has "consented to a
mistrial is a factual question" (id. at 389; see Matter of Marte
v Berkman, 16 NY3d 874, 875 [2011]).   As such, that "factual
determination . . . may not be disturbed by this Court if there
is any support for that finding in the record" (Marte, 16 NY3d at
875).
                In this CPLR article 78 proceeding in the nature
of prohibition, however, the Appellate Division made no factual
finding with respect to whether defendant consented to the
mistrial.   Rather, the Appellate Division's decision was based
solely on that Court's conclusion that "there was no manifest
necessity for the declaration of a mistrial" (Matter of Gentil v
Margulis, 120 AD3d 1414, 1417 [2d Dept 2014]).    Thus, there are
no factual findings by a lower court for us to review (cf. Marte,


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16 NY3d at 875; Ferguson, 67 NY2d at 389).   Furthermore, we have
no power to make our own factual determination on this issue (see
NY Const, art VI, § 3 [a]; CPLR 5501 [b]).
               While the majority relies on the waiver of double
jeopardy protection in People v McFadden (20 NY3d 260 [2012]),
that case is clearly distinguishable.   In McFadden, the defendant
affirmatively requested a mistrial (see id. at 262, 264-265).
Here, the issue is whether defendant impliedly consented to a
mistrial, which presents a factual question (see Marte, 16 NY3d
at 875; Ferguson, 67 NY2d at 389).
               I would reverse the order of the Appellate
Division on the ground that there was manifest necessity for a
mistrial on counts two and three of the indictment.   As the
majority notes, after the trial court determined that one juror
was unable to continue deliberations, defendant refused to
consent to the substitution of an alternate juror.
               For there to be a "manifest necessity" for a
mistrial, such that double jeopardy does not bar retrial, the
trial court must consider reasonable alternatives to a mistrial
(see Ferguson, 67 NY2d at 388; Matter of Enright v Siedlecki, 59
NY2d 195, 199-200 [1983]).   Here, the trial court considered
reasonable alternatives to a mistrial, except for the taking of a
partial verdict on count one (see Matter of Robles v Bamberger,
219 AD2d 243, 247 [1st Dept 1996], lv denied 88 NY2d 809 [1996],
appeal dismissed 88 NY2d 962 [1996]; cf. Matter of Rivera v


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Firetog, 11 NY3d 501, 508 [2008], cert denied 556 US 1193
[2009]).   Nevertheless, the trial court's failure to take a
partial verdict on count one does not bar retrial on counts two
and three.
           CPL 310.70 (2) provides that "[f]ollowing the rendition
of a partial verdict . . . , a defendant may be retried for any
submitted offense upon which the jury was unable to agree," with
certain exceptions that are not relevant here.     Thus, the trial
court's failure to take a partial verdict on count one does not
prevent defendant from being retried on counts two and three,
inasmuch as the jury was "unable to agree" on counts two and
three (CPL 310.70 [2]; see Matter of Dissell v Adams, 115 AD2d
1006, 1008 [4th Dept 1985]).
           Defendant's reliance on the Appellate Division's
dismissal of the entire indictment in Robles is misplaced.      In
that case, although the jurors indicated that they had reached a
partial verdict, there was no indication as to the count upon
which the jury had reached a partial verdict before the trial
court declared a mistrial and discharged the jury (see Robles,
219 AD2d at 247-248).   There, the Appellate Division properly
dismissed the indictment in its entirety (see id. at 248).      Here,
by contrast, the jury clearly stated that it was deadlocked on
counts two and three and, by inference, that it had reached a
partial verdict on count one only.     Defendant therefore may be
retried on counts two and three of the indictment (see CPL 310.70


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[2]; Dissell, 115 AD2d at 1008).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, without costs, and petition dismissed, in a
memorandum. Chief Judge Lippman and Judges Pigott, Rivera and
Abdus-Salaam concur. Judge Fahey concurs in result in an opinion
in which Judge Stein concurs.

Decided November 19, 2015




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