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  5. 16 N.Y.3d 874 (2011)
 

MATTER OF MARTE v. BERKMAN

16 N.Y.3d 874 (2011)

In the Matter of EDDY MARTE et al., Appellants, v. CAROL BERKMAN, Justice of the Supreme Court, State of New York, et al., Respondents.

Court of Appeals of New York.

Decided May 5, 2011.

Attorney(s) appearing for the Case

David Segal , New York City, for Eddy Marte, appellant.

Robert Blossner , New York City, for Luis Marte, appellant.

Eric T. Schneiderman , Attorney General, New York City ( Michael J. Siudzinski of counsel), for Carol Berkman, respondent.

Cyrus R. Vance, Jr. , District Attorney, New York City ( Martin J. Foncello and Alice Wiseman of counsel), for New York County District Attorney, respondent.

Judgment affirmed, etc.

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...

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