Marte v. Berkman

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered upon the ground that it is unnecessary.

“While express consent to a mistrial is preferable, defendant’s consent may in some cases be implied from the circumstances leading up to the dismissal of the jury” and the question of whether the defense consented to a mistrial involves a factual determination by the lower courts that may not be disturbed by this Court if there is any support for that finding in the record (People v Ferguson, 67 NY2d 383,…