Opinion
June 3, 1996
Appeal from the Supreme Court, Kings County (Miller, J.).
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; People v. Barreto, 149 A.D.2d 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 A.D.2d 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; People v. Thomas, 50 N.Y.2d 467; People v. Udzinski, 146 A.D.2d 245, 250; People v. Price, 144 A.D.2d 1013; People v. Fisher, 112 A.D.2d 378; People v Thompson, 107 A.D.2d 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 N.Y.2d 830, 831-832; People v Reyes, 207 A.D.2d 362).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Ritter, J.P., Pizzuto, Santucci and Krausman, JJ., concur.