People v. Cowen

249 A.D.2d 560, 672 N.Y.S.2d 138, 1998 N.Y. App. Div. LEXIS 4561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rutledge, J.), rendered December 5, 1995, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the court’s Allen charge (Allen v United States, 164 US 492) was coercive is not preserved for appellate review since he did not raise a specific objection on that ground before the trial court (see, People v Ramkisson, 245 AD2d 393). In any event, read as a whole, the court’s Allen charge properly attempted to encourage the jury to continue its deliberations to reach a unanimous verdict (see, People v Ford, 78 NY2d 878). A proper Allen charge must not attempt to persuade jurors to abandon their beliefs or convictions, must not attempt to coerce dissenting jurors to reach a particular verdict, and must not attempt to shame the jury into reaching any verdict (see, People v Perdomo, 204 AD2d 358). Although the court improvidently made reference to the costs incurred by the parties in prosecuting the first trial and asked the jury to try to reach a verdict so as to avoid the need for “another jury * * * to do the same thing all over again” (see, People v Delaremore, 212 AD2d 804; People v Johnson, 193 AD2d 695), the court repeatedly emphasized that the jurors should not “surrender [their] conscientious convictions of what the truth is” and should not be pressured into reaching a verdict that was not their own (see, People v Glover, 165 AD2d 761, 763; People v Mack, 156 AD2d 158). While the court’s reference to the costs was unfortunate and better left unsaid, on balance we find that the Allen charge was not coercive. Rosenblatt, J. P., Copertino, Goldstein and McGinity, JJ., concur.