MATTER OF WILEY v. Couzens

38 N.Y.2d 731 (1975)

In the Matter of Thomas Wiley, Appellant, v. John C. Couzens, as a Judge of the County Court of the County of Westchester, et al., Respondents.

Court of Appeals of the State of New York.

Argued October 23, 1975.

Decided November 20, 1975.

Arthur H. Grae and Keogh & Keogh for appellant.

Carl A. Vergari, District Attorney (Stephen C. Unsino of counsel), for respondents.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

*732MEMORANDUM.

On the facts of this case we cannot say that the Trial Judge abused his discretion by accepting the partial verdict and discharging the jury when he did. (CPL 310.60, subd 1, par [a]; see, also, United States v Perez, 9 Wheat [22 US] 579, 580; Illinois v Somerville, 410 US 458.) The jury reported the deadlock on the attempted murder count after deliberating for over five hours and, in response to the court's inquiry, the foreman stated that the situation would remain unchanged if deliberations were continued for another day. When the court indicated its intention to accept a partial verdict and discharge the jury, neither side objected. The decision then was left to the court's discretion, and the court did not abuse it. Thus the double jeopardy clause poses no bar to retrial on the unresolved charge (United States v Perez, supra).

Judgment affirmed, without costs, in a memorandum.