
    (June 13, 1967)
    In the Matter of Jerry Adamo, Petitioner, v. Justices of the Supreme Court of the State of New York, Assigned to Preside in Any of the Parts of the Supreme Court of the County of Bronx Held for the Trial of Criminal Indictments, et al., Respondents.
   Per Curiam.

In the face of the jurors’ declaration that they would try to reach an agreement, their failure to state a half hour later that they now felt that agreement was impossible, the expressed wish of both the prosecutor and the defense counsel that the jury be permitted to continue their deliberation, the objection by defendant’s counsel to any mistrial and his entreaty that the court comply with the jury’s last request that certain testimony be reread to them, the court was without discretionary power to discharge the jury. It was not the intention of the legislature to permit the court to exercise discretion in discharging a jury at any point of time prior to a declaration by them of their inability to agree. * * * It [Code Grim. Pro., § 428] was intended to take away the unqualified discretion that had theretofore existed in the courts in regard to discharging a jury and make the discretion of the courts dependent upon a prior declaration by the jury of their ability or inability to agree.” (People ex rel. Stabile v. Warden, 202 N. Y. 138, .149-150.) Fairness to the petitioner-defendant required that the trial he carried to a conclusion. Having been once placed in jeopardy, petitioner in effect "is acquitted of the charges against Mm and should not be again placed upon trial upon the indictment. (Matter of Nolan v. Court of Gen. Sessions, 11 N Y 2d 114, affg. 15 A D 2d 78; People ex rel. Stabile v. Warden, supra; People v. Gonzalez, 293 N. Y. 259; Code Crim. Pro., § 428.)

Judgment should be directed in favor of the petitioner prohibiting the Supreme Court, Bronx County, and the Justices thereof and Honorable Isidore Dollinger, the District Attorney of Bronx County, from retrying the petitioner upon indictment No. 674-1964, and directing the discharge of the defendant as to said indictment.

Stevens, J. P., Steuer, Tilzer, McNally and McGrivern, JJ., concur.

Judgment is directed in favor of petitioner proMbiting the Supreme Court, Bronx County, and the Justices thereof and Hon. Isidore Dollinger, District Attorney, Bronx County, from retrying the petitioner upon indictment No. 674/1964, and the defendant is discharged as to said indictment.  