Opinion
April 11, 2000.
Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered September 5, 1996, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 3 1/2 to 7 years, unanimously affirmed.
Beth Beller, for respondent.
Susan Epstein, for defendant-appellant.
SULLIVAN, P.J., TOM, MAZZARELLI, WALLACH, BUCKLEY, JJ.
Defendant has failed to preserve for appellate review his contention that the court violated the principles of People v. O'Rama ( 78 N.Y.2d 270) by purportedly delivering an Allen charge (Allen v. United States, 164 U.S. 492) after disavowing any intention to do so (see, People v. Starling, 85 N.Y.2d 509, 516;People v. DeRosario, 81 N.Y.2d 801, 803; see also, People v. Burgos, 207 A.D.2d 656, lv denied 84 N.Y.2d 906), and we decline to review it in the interest of justice. Were we to review such claim, we would find that the instruction provided was not a "full-blown" Allen charge, such as the one delivered the following day, and that there was no O'Rama violation. The court read into the record in open court the note from the deliberating jurors, which stated that they were unable to reach a verdict, and defendant had a meaningful opportunity to contribute to the court's response. In fact, counsel argued that an Allen charge would be fruitless. The court then appropriately responded to the note by informing the jurors that the case was important to both sides, that everybody had been working hard, that the jurors were the triers of fact and that they should not rely on conjecture but should instead apply common sense. The court also advised the jurors that they had a right to "stick to [their] guns or [their] conclusions". Counsel never objected to the court's procedure nor made any specific objection to the response provided. If in fact the charge were considered to be an Allen charge, we would find that it was clear and noncoercive.
The court's Sandoval determination was a proper exercise of discretion.
We perceive no abuse of sentencing discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.