We dissent and would reverse and dismiss the writ.
The petitioner was brought to trial on June 18, 1971, on an indictment charging robbery in the first degree. The entire trial up to submission to the jury took less than the time of one full court day. The case was submitted to the jury at 10:32 in the morning of June 23. At 11:07 p.m., the jury not having agreed, they were discharged by the court.
This writ seeks the discharge of the petitioner. We do not understand that it is petitioner’s claim that if a single juror fails to be convinced of his guilt he is entitled to be discharged because otherwise he would be put in jeopardy for a second time. Nor do we understand that this is a correct statement of the law. Rather, we understand that petitioner’s position is that if the court discharges the jury prematurely before they have either agreed or indicated an impossibility to come to agreement, this result is mandated. With this proposition we agree. The narrow area between our views and the petitioner’s claim, indorsed by Special Term and a majority of this court, is whether the trial court was correct in his determination that the jury did in fact show an inability to come to unanimous agreement.
The majority view is that there is a statutory formula for determining the jury’s intent, namely, subdivision 2 of section 428 of the Code of Criminal Procedure, then in effect. The section provides two tests for discharge of a jury: the lapse of a reasonable time and that the jury “ shall declare themselves unable to agree upon a verdict.” It cannot be, and in fact is not, argued that the jury had not deliberated a reasonable length of time. Nor can it be argued that the record does not establish *39with clarity that the jurors would not reach a verdict. The situation is clearly revealed by the colloquies between the court and several individual jurors to the effect that one juror was holding out and was not going to be convinced by argument. True, the court did not put to them the precise question of whether they would be unable to agree. It would have been more fortunate had he done so, but the only real consequence of the failure is to elevate the question to the rank of a magic formula — regardless of the factual situation, the talisman becomes the law.
The result is seen to be improper as representing the legislative intent. In the present CPL 310.60 (subd. 1, par. [a]) the test is deliberation for an extensive period of time and the court being satisfied that agreement is unlikely within a.reasonable period. As there is no indication that any radical change was intended, it is submitted that the new wording merely clarified the original intent, namely, that when to discharge the jury was in the discretion of the court (People v. Rial, 25 A D 2d 28), and the supposed limitation on that discretion was the consequence of inadvertent expression.
The judgment granting the ivrit should be reversed and the writ dismissed.
Capozzoli, J. P., and McGivern, J., concur with Murphy, J., in separate opinions; Steuer, J., dissents in an opinion in which Eager J., concurs.
Judgment, Supreme Court, New York County, entered on October 21, 1971, affirmed.