The original trial court was not compelled by manifest necessity to declare a mistrial and terminate the proceedings after two days of deliberations (see Matter of Randall v Rothwax, 78 NY2d 494, 498 [1991], cert denied sub nom. Morgenthau v Randall, 503 US 972 [1992]), because 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. Although two of the jurors indicated that they had scheduling problems during the following week, the court had already directed them to report for deliberations on the following Monday. Moreover, 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 (see People v Duda, 45 AD3d 1464, 1465 [2007], lv denied 10 NY3d 764 [2008]; Matter of Guido v Berkman, 116 AD2d 439, 443 [1986]).
However, the need for manifest necessity for the mistrial was obviated by petitioners’ consent, which can be implied from the circumstances (see People v Ferguson, 67 NY2d 383, 388-389 [1986]). Defense counsel were aware and had discussed with the court that the jury sent a note on Friday morning stating that it was at an impasse on some counts, that later two jurors had *494claimed that they could not resume deliberations the following week, and that there were no alternates available for substitution. After receiving a second note on Friday afternoon stating that the jury was at an impasse, the court stated that it was inclined to take a partial verdict and declare a mistrial as to the remaining counts, and asked counsel if they wished to be heard. One of petitioners’ counsel said “no” and the other remained silent. Immediately thereafter, the court called in the jury, took a verdict of not guilty on the first two counts, and asked counsel if they had “anything for the record.” After defense counsel again remained silent, the court thanked the jury for its service and discharged it. It was only at that point that defense counsel asked that the jury be held, and, after the court stated that it was declaring a mistrial “so[ ] that the record is clear,” counsel first registered their objection. Under the circumstances, the court by its actions was carrying out its previously announced intention to terminate the trial. Defense counsel had been given ample notice of that intention and an opportunity to be heard. Accordingly, counsel’s failure to object when the court invited them to speak, or at the latest before the jury was discharged, constituted implied consent sufficient to deny petitioners’ application (see id. at 386-387, 389).