Opinion
February 27, 1984
Proceeding pursuant to CPLR article 78 (1) in effect, to prohibit respondent from commencing a second retrial of petitioners under indictment No. 1493/81, and (2) for dismissal of the said indictment. Proceeding dismissed, without costs or disbursements. Notwithstanding the fact that the trial court had delivered an Allen charge ( Allen v United States, 164 U.S. 492) three hours prior to its declaration of a mistrial, it was not bound to substitute an available alternate, pursuant to CPL 270.35, when one juror was unable to continue deliberations. Because the jury had been deliberating for seven days and had twice declared itself deadlocked (first on the fourth day of deliberations and again on the seventh day of deliberations), the court could have concluded that agreement on a verdict was unlikely within a reasonable time and thus properly declared a mistrial in accordance with CPL 310.60. The Trial Judge was "best situated intelligently to make such a decision" ( Gori v United States, 367 U.S. 364, 368) and, under all the relevant facts and circumstances, we find that he exercised his discretion properly and that retrial will not deprive petitioners of any constitutional right ( Gori v United States, 367 U.S. 364, 368, supra; Arizona v Washington, 434 U.S. 497, 510; Hall v Potoker, 49 N.Y.2d 501, 505; Matter of Respeto v McNab, 90 A.D.2d 308, 311, aff'd. 60 N.Y.2d 739; People v Rial, 25 A.D.2d 28, 31). Moreover, it is well settled that the failure of successive juries to reach a unanimous verdict does not interdict a further retrial ( Arizona v Washington, supra; Chin v United States, 622 F.2d 1090, 1092, cert. den. 450 U.S. 923; United States v Mespoulede, 597 F.2d 329; People v Kirby, 112 Misc.2d 906, 907-909, approved on this point, revd on other grounds 92 A.D.2d 848, application for lv. to app granted 60 N.Y.2d 706). To the extent that petitioners seek dismissal of the indictment in the interest of justice, we note that such relief is not obtainable in this collateral proceeding (see Matter of Legal Aid Soc. v Scheinman, 53 N.Y.2d 12; Matter of State of New York v King, 36 N.Y.2d 59; Matter of Masin v County Ct., 97 A.D.2d 643) and, in any event, would not be warranted on this record ( People v Kirby, supra). Titone, J.P., Mangano, Thompson and O'Connor, JJ., concur.