Weinberg also argued that Judge Beverly Cannone abruptly announced the mistrial in court without first asking each juror to confirm her findings on each count or giving defense attorneys a chance to weigh in.

But Associate Justice Serge Georges said Read had experienced defense attorneys who must have realized a mistrial was possible when Cannon presented jurors with what is called the Tuey-Rodriguez charge, a last-ditch effort to get them to reconsider their positions before The mistrial will be declared.

“There’s not a lawyer worth their salt who doesn’t think they could mistrial because of this,” George said, rejecting the argument that the defense didn’t have a chance to be heard. “We keep in mind that you have to know that a mistrial is going to be on the table. What obligation does the lawyer have to say, hey, before we declare a mistrial, let’s talk about alternatives to that?”

In August, a judge ruled that Read can be retried on those charges. ”When a verdict was not announced in open court here, a new trial of the defendant does not violate the principle of double jeopardy,” Judge Beverly Cannone said in her ruling.

Prosecutors have maintained there is no basis to dismiss second-degree murder charges and leave the scene of the accident. In court, they argued that defense counsel should have perceived that a mistrial was “inevitable or unavoidable” and that they had every opportunity to be heard.

Still, Gaziano asked Deputy Prosecutor Caleb Schillinger whether Cannone had “the discretion or obligation to ask the jury after the final note about continued deliberations or a verdict on any included misdemeanor.”