People v. Auguste

• Decision Date: 06 May 2002
• Docket Number: 2,00-08080
• Parties: The People, etc., respondent, v Ludwidge Auguste, appellant. (Ind./99) 2000-08080 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

The People, etc., respondent, v Ludwidge Auguste, appellant.

(Ind. No. 705/99)

2000-08080

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - April 11, 2002

Decided on May 6, 2002

Lynn W. L. Fahey, New York, N.Y. (V. Marika Meis of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Nicoletta J. Caferri of counsel; Doreen S. Martin on the brief), for respondent.

DECISION & ORDER

ANITA R. FLORIO, J.P.

NANCY E. SMITH

GABRIEL M. KRAUSMAN

SANDRA L. TOWNES, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered August 10, 2000, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At trial, the jury deadlocked on the burglary count, after which the court provided a standard Allen instruction (see Allen v United States, 164 US 492). After the jury deadlocked a second time, the court gave an "enhanced" Allen charge. Soon after, the jury returned a verdict convicting the defendant of burglary in the second degree. The defendant contends that the second Allen charge was improper.

Since the defendant failed to request specific language for the second Allen charge and failed to object to the charge as given, his claim is unpreserved for appellate review (see People v Petty, 282 A.D.2d 551; People v McRae, 266 A.D.2d 241; People v Arnold, 226 A.D.2d 468; People v Perdomo, 204 A.D.2d 358). In any event, contrary to the defendant's contention, the charge adequately advised the jurors that they were not to abandon their individual beliefs and that the jury verdict must be the verdict of each individual juror (see People v Sims, 226 A.D.2d 564; cf. People v Ali, 65 A.D.2d 513, affd 47 N.Y.2d 920). Moreover, in light of the overall propriety of the charge, the jury's brief deliberation after the court issued the Allen charge did not demonstrate that the charge was coercive (cf. People v Nunez, 256 A.D.2d 192; People v Diaz, 245 A.D.2d 526).

FLORIO, J.P., SMITH, KRAUSMAN and TOWNES, JJ., concur.