People v. Deago

188 A.D.2d 276, 590 N.Y.S.2d 470, 1992 N.Y. App. Div. LEXIS 13508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1992
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (William Wallace, III, J.), rendered November 8, 1990, convicting defendant of rape in the first degree and endangering the welfare of a child, and sentencing him to concurrent terms of imprisonment of ten to twenty years and one year, respectively, unanimously affirmed.

There was no reasonable view of the evidence to support a jury charge on attempted rape, since there was no basis for the jury to discredit the complainant’s testimony that there was penetration, while crediting the remainder of her testimony. The brief questioning of the juror in the presence of defendant’s counsel but not defendant, was proper (People v Torres, 80 NY2d 944).

With respect to the court’s Allen charge, defendant failed to preserve his present claims by timely objection at trial and we decline to review in the interest of justice. Even interpreting the charge in the manner defendant suggests, it is clear that the charge was not coercive, as the jury continued to deliberate that day and the next before it found defendant guilty of the first count.

The remaining errors claimed by defendant are either unpreserved or without merit. Concur — Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.