retry petitioner absent judicial or prosecutorial bad faith. The trial transcript reveals that petitioner's counsel consented to the non-submission. In discussing the judge's charge, the following colloquy occurred:
Court: Do you want to know the charge that I am submitting?
Court: Murder 2, Man 1, Man 2, Criminally Negligent Homicide
* * *
Defense Counsel ("DC"): Are you going to submit any lesser included gun charge?
DC: It's my --
Court: I just gave you what I am submitting.
DC: You're submitting [the gun count]?
Court: No, I'm not.
DC: Not at all?
DC: The guns are not going to the jury at all?
DC: In other words, if they should find him not guilty of all four homicides that's the end of the case?
DC: No guns?
DC: I don't have to get involved with a gun discussion. All right.
Court: You don't have a separate position.
DC: I understand that. That is why I didn't request it in my charge -- in my request.
Court: Anything else?
DC: Can we talk about scheduling a little bit, Judge?
Trial Transcript at 774-75. This record reflects that petitioner's counsel understood that the judge would not submit the gun charge to the jury.
Moreover, despite such comprehension, petitioner's defense counsel failed to register an objection to the trial court's decision. At the hearing before this Court, defense counsel admitted that he did not object to non-submission of the counts. See Dec. 5, 1991 hearing at 6, 9-10. At the December 5 hearing, Justice Rappaport stated that:
Judge, the fact of the matter is that I believe the law of the State of New York, if this judge wanted not to send these counts, that it was deemed dismissed, which was the very thing I was asking him to do. I moved to dismiss the third count. Now he's not sending it to the jury. He denies my motion by not sending it. And the statute is clear that if he doesn't send it, it's going to be dismissed. I have to be an idiot to object.
Dec. 5, 1991 Hearing at 18; see also Dec. 5 Hearing at 12. While petitioner may not have solicited non-submission of the charge, petitioner and his counsel certainly acquiesced in the judge's decision.
While this Court believes that Justice Rappaport expressly consented to non-submission of the counts, in appropriate situations courts have implied consent after examining "the totality of the circumstances." United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir.), cert. denied, 414 U.S. 873, 38 L. Ed. 2d 113, 94 S. Ct. 151 (1973). For instance, courts will imply consent when a defendant fails to object to a judge's decision after having an opportunity to register an objection. See Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610 (7th Cir. 1989), cert. denied sub nom., Camden v. Circuit Court of Crawford County, 495 U.S. 921, 110 S. Ct. 1954, 109 L. Ed. 2d 316 (1990); United States v. Smith, 621 F.2d 350, 352 (9th Cir. 1980); United States v. Gentile, 525 F.2d 252, 255 (2d Cir. 1975), cert. denied, 425 U.S. 903, 47 L. Ed. 2d 753, 96 S. Ct. 1493 (1976). Compare United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971) (no consent where defendant had no opportunity to object); United States v. Bates, 917 F.2d 388 (9th Cir. 1990) (no consent where after declaring mistrial, court refused counsel's request to be heard); United States v. Ramirez, 884 F.2d 1524, 1529 (1st Cir. 1989) (no implied consent there defendant not given opportunity to object to mistrial); United States v. Kwang Fu Peng, 766 F.2d 82 (2d Cir. 1985) (no implied consent where defendant withdrew motion for mistrial).
Justice Rappaport obviously understood that Justice Warner had decided not to send the gun counts to the jury. The trial transcript reveals that defense counsel repeatedly sought to clarify what counts Justice Warner would send to the jury and that Justice Rappaport fully understood Justice Warner's decision. See Trial Transcript at 770-79 (reprinted supra at 19-20). He could have objected to non-submission at this time. He testified before this Court, however, that he chose not to record an objection. See Dec. 5 Hearing at 18, 32, 38. Accordingly, this Court may imply that defense counsel consented to the non-submission decision. Of course, because this Court finds that defense counsel expressly consented to non-submission of the counts, it has no need to resort to an implied consent theory.
Because petitioner consented to non-submission of the weapons counts, retrial is appropriate without requiring the State to show manifest necessity for Justice Warner's decision not to submit the gun counts to the jury. The State may retry petitioner on the gun charges unless the prosecution or the court acted in bad faith to obtain petitioner's consent. Petitioner has not presented, does it appear to this Court there exists, any evidence of bad faith. Petitioner's reprosecution on weapons charges, therefore does not violate the double jeopardy clause of the United States Constitution.
Accordingly, the petition for a writ of habeas corpus denied.
DATED: January 27, 1992
New York, New York
David N. Edelstein