Marte v. Berkman

Tom, J.P. (dissenting).

This CPLR article 78 proceeding raises the issue of whether petitioners consented to the declaration of a mistrial and whether the court properly considered all relevant circumstances as well as the available alternatives before finding the jury deadlocked. The mistrial declaration followed a brief period of deliberation by a newly constituted jury that never received an Allen charge and was immediately met by petitioners’ objection. Under these circumstances, petitioners cannot be said to have acquiesced in the ruling. Furthermore, the court failed to consider…