Summary
In People v. Austin, 161 AD2d 275 (1990), appeal denied, 76 NY2d 852 (1990), the First Department found, in pertinent part, that the elements of robbery, as defined by the North Carolina courts, are equivalent to New York's crime of robbery in the third degree.
Summary of this case from People v. HolderOpinion
May 8, 1990
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
On June 28, 1986, defendant struck the complainant in the head with a gun, causing her to fall to the ground unconscious, after which he kicked and stomped her. During jury deliberations, the court received a jury note stating that all the jurors, except one, had reached agreement. Counsel requested that the court declare a mistrial and argued that no Allen charge should be delivered. The court, however, gave supplemental instructions urging the jurors to exchange ideas and try to reach agreement. After the jury resumed deliberations, the court was again notified that one juror was not agreeing to a verdict. A note from the "hold-out" juror revealed that he was speculating about matters not in evidence. After the court instructed the jury that they must decide the case on the evidence or lack of evidence already presented, the jury returned a guilty verdict.
Defendant claims for the first time on this appeal that the court's Allen charge was coercive, thereby denying him a fair trial. Defendant failed to preserve his challenge to the court's Allen charge on the specific grounds asserted on this appeal (CPL 470.05; People v. Balls, 69 N.Y.2d 641). However, were we to review in the interest of justice, we would not find the charge coercive, unbalanced, or that it singled out the hold-out juror for noncompliance with the majority (compare, People v Pagan, 45 N.Y.2d 725, with People v. Diaz, 66 N.Y.2d 744).
In addition, defendant argues that he was improperly adjudicated a second felony offender based on his previous North Carolina conviction of attempted common-law robbery. However, the elements of common-law robbery, as defined by North Carolina case law, are equivalent to the elements of class D felonies in New York: attempted robbery in the third degree and grand larceny in the second degree (Penal Law § 110.00, 160.05 Penal, 155.40 Penal; State v. Norris, 264 N.C. 470, 141 S.E.2d 869; State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34). Therefore, appellant was properly adjudicated a second felony offender and resentencing is not required (People v. Gonzalez, 61 N.Y.2d 586).
Concur — Kupferman, J.P., Ross, Kassal, Ellerin and Wallach, JJ.