
    The People of the State of New York, Respondent, v John Walsh, Appellant.
    Argued May 4, 1978;
    decided June 8, 1978
    
      POINTS OF COUNSEL
    
      iSteven A. Herman and William E. Hellerstein for appellant.
    I. Where appellant’s first trial was terminated pursuant to CPL 310.70 (subd 1, par [a]), after a hopelessly deadlocked jury rendered a partial verdict acquitting appellant of attempted murder, but deadlocked on assault and weapon charges, the trial court erred, when prior to the commencement of the second trial, it denied appellant’s motion to dismiss the unresolved charges as required by CPL 310.70 (subd 2). (Matter of Di Lorenzo v Murtagh, 46 AD2d 792, 36 NY2d 306; People v Seymour, 74 Misc 2d 2; People v Tanner, 30 NY2d 102.) II. Appellant’s fundamental right to confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and section 6 of article I of the State Constitution, was violated where the court admitted the prior testimony of Jose Villalobos, the People’s key identification witness at appellant’s first trial, even though the People negligently lost contact with Villalobos and then failed to make the required diligent or good faith effort to find him. (Barber v Page, 390 US 719; Mattox v United States, 156 US 237; United States v Motes, 178 US 458; Gorum v Craven, 465 F2d 443; People v Mainor, 77 Misc 2d 946; People v Crimmins, 36 NY2d 230.) III. The trial court erred when it refused defense counsel’s request to charge the jury that appellant’s identity as Neenan’s assailant must be proved beyond a reasonable doubt where identification was the sole issue for the jury to decide, the People’s evidence was inconsistent and contradictory, and a strong case of mistaken identity was developed. (United States v Wade, 388 US 218; Gregory v United States, 369 F2d 185; United States v Barber, 442 F2d 517; United States v Holley, 502 F2d 273; United States v Telfaire, 469 F2d 552; United States v Fernandez, 456 F2d 638; People v Diaz, 53 AD2d 587; People v Martinez, 28 AD2d 913.)
    
      John J. Santucci, District Attorney (Annamarie Policriti of counsel), for respondent.
    I. The court’s charge with respect to proof of identity was adequate and the court properly refused a further instruction requested after the charge was delivered. (United States v Shelvy, 458 F2d 823; United States v Barber, 442 F2d 517; People v Diaz, 53 AD2d 587; Gregory v United States, 369 F2d 185; United States v Telfaire, 469 F2d 552.) II. Appellant was not deprived of his right to confrontation when the court permitted the testimony of Jose Villalobos at the prior trial to be read in evidence after finding, following a hearing, that he could not with due diligence be found at the time of the retrial. (Mattox v United States, 156 US 237; Barber v Page, 390 US 719; California v Green, 399 US 149; People v Graham, 43 AD2d 182, 36 NY2d 633; People v Steeps, 52 AD2d 887; United States v Motes, 178 US 458; Williams v Meachum, 382 F Supp 521; People v Fish, 125 NY 136; People v Arellano, 55 AD2d 691.) III. Although there was a verdict of acquittal on the attempted murder count, CPL 310.70 did not bar appellant’s retrial on the unresolved assault and weapon counts. (People v Light, 285 App Div 496; Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53; United States v Jorn, 400 US 470; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947; People v Seymour, 74 Misc 2d 2; Matter of Di Lorenzo v Murtagh, 36 NY2d 306; People v Salemmo, 38 NY2d 357; People v Lewis, 29 NY2d 923; People v Brooks, 34 NY2d 475; Matter of Meyer, 209 NY 386.)
   OPINION OF THE COURT

Cooke, J.

Based on an incident at a bar in Queens County on May 18, 1973, during which one of the patrons suffered a serious knife wound, defendant was indicted for attempted murder, assault in the first degree, and possession of weapons and dangerous instruments and appliances as a felony. Defendant was tried twice, and the issue before us is whether a partial verdict rendered in the first trial barred the second prosecution.

The first trial lasted five days. After deliberating until one in the morning, the jury reached agreement on one count but indicated that it was hopelessly deadlocked on the other two counts of the indictment. At the request of the Trial Justice, the jury rendered its verdict of not guilty with respect to the charge of attempted murder. Upon the court’s inquiry to counsel as to whether the panel should be sent back for further deliberations, defendant responded by asking for a mistrial, and the jury was excused.

Defendant thereafter moved to prohibit the People from retrying him, but the motion was denied and the second trial resulted in convictions for the remaining two counts of the indictment. Upon appeal, the Appellate Division modified by reversing the conviction for possession of weapons, instruments and appliances, as a felony, and dismissing said count, but rejected the contention that his retrial on the unresolved concurrent counts was barred.

CPL 310.70 concerns the rendition of partial verdicts and their effect. At the time of the trial of defendant, subdivision 2 of the statute provided: "Upon the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried upon an unresolved count of an indictment when such unresolved count is consecutive, as that term is defined in subdivision two of section 300.30, as to every count upon which the jury did render a verdict, whether of guilty or not guilty” (L 1970, ch 996, § 1).

"Consecutive counts” of an indictment are those upon which consecutive sentences may be imposed following conviction and are distinguished from "concurrent counts” where only concurrent sentences may be given (CPL 300.30, subds 2, 3). Consecutive sentences are authorized where the crimes charged are not the result of a "single act”, but instead emanate from "separate successive acts” (see Penal Law, § 70.25, subd 2; see, e.g., People v Tanner, 30 NY2d 102, 108).

In the instant case, all of the counts of the indictment relate to one inseparable event — the defendant’s .alleged attack upon the victim which included the cutting or stabbing with a knife. A consecutive sentence could not have been imposed upon conviction for all of the charges since they were the result of a single act (see Penal Law, § 70.25, subd 2). Hence, upon rendition of a partial verdict of acquittal, since the unresolved counts were concurrent rather than consecutive, defendant could not be retried under CPL 310.70 (subd 2) as then written (compare Matter of Di Lorenzo v Murtagh, 36 NY2d 306).

In holding that defendant’s second trial was barred, we reject the assertion that defendant’s request for a mistrial removed the statutory impediment to retrial. That this argument is without merit may be demonstrated by examining another section of the CPL. When a jury is discharged before rendition of any verdict, the statute contemplates counsel’s consent as an alternative ground, and provides for retrial with virtually no limitation (CPL 310.60). This contrasts sharply with CPL 310.70 (subd 2), as then drafted, which makes no mention of counsel and envisions retrial following a partial verdict of only a specific type of count. The point is that the express wording of the statute in question does not allow retrial of anything but consecutive counts. Whether the court decided to grant a mistrial or to send the jury back for further deliberation, once the partial verdict was rendered, the unresolved concurrent counts could not be the subject of a second trial. Therefore, the fact that defendant moved for a mistrial could not serve to remove the statutory bar to retrial.

The foregoing analysis is also relevant with respect to the People’s assertion that the statute was never intended to bar retrial following a partial verdict of acquittal as distinguished from conviction. While the People have fashioned an argument based on prior law, the express terms of the statute do not even suggest that the Legislature intended any such distinction. Indeed, that the wording of the former subdivision might mandate dismissal under the circumstances presented here was a subject of concern (see People v Seymour, 74 Misc 2d 2 [Titone, J.]) and resulted in the previously noted amendment (see Bellacosa, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.70, Pocket Part [1977-1978], pp 255-256). The court should not strain for an interpretation for which there is no express or even infer-able foundation in the statute itself, and therefore this argument too must be rejected.

Accordingly, for the reasons stated, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc. 
      
       The law has since been amended (L 1974, ch 762, eff Sept. 1, 1974), but the amendment is inapplicable to this case since the partial verdict here was rendered in December of 1973. The relevant subdivisions, as revised, are as follows:
      "2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:
      "(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense, or
      "(b) The submitted offense which was the subject of the disagreement, and some other submitted offense of higher or equal grade which was the subject of a verdict of conviction, were so related that consecutive sentences thereon could not have been imposed upon a defendant convicted of both such offenses.
      "3. As used in this section, a 'submitted offense’ means any offense submitted by the court to the jury, whether it be one which was expressly charged in a count of the indictment or a lesser included offense thereof submitted pursuant to section 300.50.”
     