People v. Lewis

169 A.D.2d 579, 564 N.Y.S.2d 432, 1991 N.Y. App. Div. LEXIS 514

Opinion

Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered July 11, 1989, convicting defendant, after a jury trial, of robbery in the first degree and sentencing defendant, as a second felony offender, to AV2 to 9 years’ imprisonment, unanimously affirmed.

The discharge of the first jury was not improper. We note that the trial court had properly instructed the jury, after the first note which indicated deadlock, that it must return to deliberate, in a manner consistent with Allen v United States (164 US 492). The jury returned for further deliberations, requested other items of evidence, which were provided, and again indicated that it was deadlocked. After individually polling each juror to ascertain whether additional time could reasonably be expected to contribute to a verdict, the court declared a mistrial.

Under the standards set forth in Matter of Plummer v Rothwax (63 NY2d 243), we cannot conclude that the trial court abused its discretion in discharging the jury. The brevity of deliberations does not, of itself, mandate a conclusion that further deliberations would have overcome the deadlock.

We have examined defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Ross and Smith, JJ.