I agree the petition should be dismissed because petitioners (the defendants in the underlying criminal prosecution) implicitly consented to the mistrial. Additional discussion of the relevant facts and legal principles, however, is warranted. I also agree, with Justice Berkman that “[t]he declaration of a mistrial was within the court’s discretion, and a retrial of the undecided count would not offend the double jeopardy rule.”
After an eight-day trial, the court submitted to the jury the three counts of robbery charged in the indictment (attempted first-degree robbery and two counts of attempted second-degree robbery) and the lesser included offense of attempted third-degree robbery. Deliberations commenced on a Thursday and the jury, throughout the course of that day, requested exhibits, a readback of testimony and additional instruction on the law. The next morning, the jury requested additional exhibits, another readback of testimony and instruction. The jury also reported that it had reached an agreement on one count, was close to an agreement on another and was at an “impasse” on the remaining two counts. The court declined the invitation of defendants to take a partial verdict. Rather, after providing the additional readback and instruction the jury had requested, the court gave the jury a modified Allen charge (Allen v United *495States, 164 US 492 [1896]). Early that afternoon, the court responded to additional requests for readbacks of testimony and legal instruction. In addition, the court substituted an alternate juror for a juror who was traveling out of town and had to make a flight. At that juncture, there were no remaining alternates. However, two other jurors, jurors three and eight, asked to be relieved from service due to obligations they had that required them to be out of state; one juror was scheduled to leave on Sunday and the other on Monday morning. Explaining that there were no alternates, the court advised the jurors that they would have to return on Monday if a verdict was not returned by the end of the day. Late that afternoon, at about 5:30 p.m., the jury sent another “impasse” note. That is, although the jury reported that it had reached a verdict on two counts, it declared anew that it remained “at an impasse” on the remaining counts. Another note renewed the request of juror eight to be released from jury duty.
After the court made the notes available to counsel and reported their contents, the following occurred:
“the court: My inclination is to take the verdict and declare a mistrial as to the other charges.
“[the prosecutor]: I guess that sounds like where we’re going, Judge.
“the court: Do counsel want to be heard?
“[counsel for defendant eddy marte]: No.
“the court: Okay. If there is nothing else, we’ll bring them in.
“court officers: Yes, Judge
“[counsel for defendant eddy marte]: Judge, you’ll take a partial?
“the court: I’ll take a partial verdict.”
The Court then took the partial verdict. When the Clerk thanked the foreperson and told the foreperson to be seated, the following occurred:
“the court: Counsel, anything for the record?
“[the prosecutor]: Nothing for the record, Your Honor.
“the court: All right. I want to thank you very much. I know we kept you much longer that I originally indicated it would take. I think you’ve performed an excellent service, clearly by virtue of your notes and your attention that you have truly become involved in this case in its determination. So, thanks very much. Have a good weekend.
“court officer: Jury exiting.”
*496As is evident, defendants voiced no objection to the declaration of a mistrial before the jury was discharged. Defendants did not voice an objection when the court stated that its “inclination” was to declare a mistrial; or when the court went on to make clear that it would take a partial verdict, which, under the circumstances, further indicated even if it did not confirm that the court was making good on its “inclination”; or when the court expressly asked counsel, after taking the partial verdict, if they had “anything for the record”; or when the court was thanking the jury or telling the jurors to have a good weekend; or when the jury began to exit the courtroom. Only at some point after the jury was discharged—at a point when, the record is not definitive on the issue, the jurors may or may not have left the jury room*—did defendants object to the declaration of a mistrial as to the third count of the indictment. At that point, of course, the objection was pointless (see Warner v New York Cent. R.R. Co., 52 NY 437, 443 [1873] [“after the verdict has been received . . . and the jury has been dismissed, they have not the power to be reassembled and alter their verdict”]; People v Satloff, 56 NY2d 745, 746 [1982] [after discharge of the jury “it was no longer possible to remedy the defect (in the verdict), if any, by resubmission to the jury for reconsideration of its verdict( )”]).
I agree with the memorandum decision that defendants implicitly consented to the mistrial. As we have stated, a defendant’s “consent need not be express, but may be implied from the totality of circumstances attendant upon the declaration of a mistrial” (Matter of Guido v Berkman, 116 AD2d 439, 444 [1986]; see also People v Ferguson, 67 NY2d 383, 388-389 [1986]). Although the defendants in Matter of Guido “were not on notice of an impending mistrial” (116 AD2d at 444), defendants certainly were here. Defense counsel (1) participated in discussion of the subject of a mistrial, expressly stating that they had nothing to say when the prosecutor acknowledged that a mistrial was “where we’re going,” (2) had multiple opportunities to object to a mistrial before the jury was discharged and (3) did not object when the court discharged the jury or as the jury was leaving the courtroom (see Matter of Matthews v Nicandri, 252 AD2d 657, 658 [1998], appeal dismissed 92 NY2d 945 [1998] [finding implied consent to mistrial and relying on the “well-established principle that, in the absence of any objection, a defense counsel’s active participation in a colloquy concerning the grant of a mistrial will give rise to a finding of *497consent”]; People v Lilly, 187 AD2d 674, 675 [1992], lv denied 81 NY2d 973 [1993] [“Not only did the defense counsel actively participate in the various colloquies concerning the jury’s inability to reach a verdict, he also registered no protest when the court announced that it believed the jury would be unable to overcome the impasse, and when it ultimately declared a mistrial”]).
A crucial consideration here is that, even indulging the fanciful notion that defense counsel were not on notice before the partial verdict was taken that the court was going to declare a mistrial, it unquestionably was clear that the court was granting a mistrial when it was thanking the jurors for their service and wishing them a good weekend. The silence of counsel even at this crucial juncture requires a finding of consent. Such a finding is all the more reasonable given that counsel pounced with their belated objections only after the jury had been discharged and left the courtroom. Under these circumstances, it encourages gamesmanship to hold that implicit consent cannot be found when a defendant who believes one of his fundamental constitutional rights is being violated does not register any protest (cf. People v Dekle, 56 NY2d 835, 837 [1982]). Especially because of the severe consequences for the People’s ability to enforce vitally important criminal laws, permitting defendants to parlay their silence into the windfall of a dismissal of the remaining count of attempted robbery would be an embarrassment to the law.
With respect to the question of manifest necessity, “the declaration of a mistrial due to a deadlocked jury is a matter of discretion for the Trial Judge, who is in the best position to determine whether a mistrial is required under the circumstances of the case, and this decision must be accorded great deference” (People v Sanders, 51 AD3d 825, 825 [2008], lv denied 11 NY3d 741 [2008] [internal quotation marks omitted]). The weighty substantive concern supporting this requirement of great deference was explained by the Supreme Court in Arizona v Washington (434 US 497, 509-510 [1978]): “If retrial of the defendant were barred whenever an appellate court views the ‘necessity’ for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.”
Neither the memorandum decision nor the dissent gives ap*498propriate deference to the trial court’s decision. The memorandum states that “the court failed to confirm that the jury was hopelessly deadlocked either by polling the jurors or by asking the foreperson in the presence of the jury whether a unanimous verdict could be reached in a reasonable amount of time.” But this hindsight criticism of the court—neither defendant asked either for the jury to be so polled or the foreperson to be so questioned—disregards what is most important: the jury reported in its last note, as it had indicated in an earlier note that it was at an impasse on two of the four counts (see United States v Byrski, 854 F2d 955, 961 [7th Cir 1988] [of the factors appropriately informing a trial judge’s decision whether or not a jury is deadlocked, “(t)he most critical factor is the jury’s own statement that it was unable to reach a verdict” (internal quotation marks omitted)]; see also United States v Salvador, 740 F2d 752, 755 [9th Cir 1984], cert denied 469 US 1196 [1985] [same]). Furthermore, in the course of taking the partial verdict, the foreperson confirmed in response to the court’s inquiry that the jury was undecided on all counts other than the two counts as to which it had found each defendant not guilty. And because the second impasse note had been preceded by a modified Allen charge, the court was entitled for this additional reason to conclude that further deliberations were pointless.
The memorandum also states that “the court reasonably could have asked the jury to continue deliberating past 5:00 p.m. on the date the trial was terminated, a Friday.” This objection disregards the very danger recognized in Arizona v Washington (434 US 497 [1978], supra) that the jury might hastily return an unjust judgment. That danger certainly was exacerbated by the fact that two of the jurors had requested to be discharged at the end of that day due to travel plans that were important to each of them. The memorandum notes that “the court had already directed [the two jurors] to report for deliberations on the following Monday.” But the court had not directed all the jurors to report that Monday and doing so risked coercing a verdict on Friday. This objection, moreover, wrongly assumes that the trial judge could not properly have concluded that further deliberations were pointless.
The dissent is not persuasive. In the first place: “a judge’s mistrial declaration is not subject to collateral attack . . . simply because' he failed to find ‘manifest necessity’ in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion” (Arizona v Washington, 434 US at 517). Second, the dissent concludes that “[t]he record reflects that the decision to terminate the trial was the result of *499the court’s attempt to accommodate the interests of juror number eight. . . and juror number three.” Hopefully, the trial court was sympathetic to the plight of these jurors; it certainly is fair to assume it was. But the dissent’s conclusion that accommodating these jurors was in fact the reason for the court’s decision is just baseless as well as manifestly unfair. Indeed, as Justice Berkman wrote, “it is clear from this record that the court was fully aware that it could not declare a mistrial simply to accommodate the jurors’ convenience.”
The dissent is no less unfair to the trial judge in asserting that “the trial court failed to consider available alternatives before declaring a mistrial.” Nothing in the record comes close to showing that the trial judge committed such an elementary error. The most that fairly can be said is that the trial judge did not discuss the subject on the record. But at the risk of belaboring the point, the double jeopardy rights of the defendants were not thereby violated (Arizona v Washington, 434 US at 517 [a trial judge’s declaration of a mistrial “is not subject to collateral attack . . . simply because he failed ... to articulate on the record all the factors which informed the deliberate exercise of his discretion”]).
The possibility that defendants might consent to proceeding with less than 12 jurors was not raised by counsel until after the jury was discharged, when it was too late. In any event, the dissent’s criticism of the trial court on this ground assumes that the court erred in concluding that further deliberations were pointless. If the court did not err in concluding that further deliberations were pointless, this criticism also is pointless. Morever, unless a trial judge is informed by defense counsel that the defendant is willing to proceed with 11 jurors, the judge should not be faulted if the record does not reflect consideration or discussion of this extraordinary possibility prior to the discharge of the jury.
Finally, the notion that defendants “were incapable of making a contemporaneous objection” is supported by nothing at all. Indeed, it is refuted by the record. Again, even assuming that counsel somehow had been in the dark previously about the court’s intentions, they said nothing as the jurors were being thanked and discharged or as they were leaving the courtroom. The reality is that trial judges, sometimes perhaps to their dismay, are not uncommonly interrupted by counsel. Criminal defense attorneys are not and cannot be a timorous lot. Even assuming without reason that counsel were exceptionally timorous, that would not excuse their silence. The only reasonable conclusion is that they impliedly consented and should not be permitted to have their cake and eat it, too.
The record reflects only that the court stated “let’s hold them,” not whether the jurors in fact were held.