People v. Brooks
| Citation | 152 A.D.2d 591,543 N.Y.S.2d 704 |
| Parties | The PEOPLE, etc., Respondent, v. David BROOKS, Appellant. |
| Decision Date | 03 July 1989 |
| Court | New York Supreme Court Appellate Division |
John F. Clennan, Ronkonkoma, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Robin Bernstein and Barbara Thomashower, of counsel), for respondent.
Before BRACKEN, J.P., and RUBIN, SPATT and SULLIVAN, JJ. concur.
MEMORANDUM BY THE COURT.
Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Deeley, J.), rendered January 27, 1981, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence, and (2) from a judgment of the same court (Murray, J.), rendered March 31, 1981, convicting him of criminal possession of a weapon in the third degree and assault in the first degree, upon a separate jury verdict, and imposing sentence.
ORDERED that the judgments are affirmed.
With respect to the judgment rendered January 27, 1981, any issue of law with respect to the alleged defect in the trial court's instructions to the jury has not been preserved for appellate review (see, CPL 470.05[2]; People v. Giammarino, 105 A.D.2d 802, 481 N.Y.S.2d 435). In any event, while the court's statement to the jury concerning whether "your minds are wavering" or "the scales are even" within the reasonable doubt charge was technically improper (see, People v. Martinez, 118 A.D.2d 661, 499 N.Y.S.2d 964), the charge as a whole correctly explained the concept of reasonable doubt to the jury and therefore did not deprive the defendant of a fair trial (see, People v. Cadorette, 83 A.D.2d 908, 442 N.Y.S.2d 137, affd. 56 N.Y.2d 1007, 453 N.Y.S.2d 638, 439 N.E.2d 353; People v. Townes, 104 A.D.2d 1057, 480 N.Y.S.2d 962).
With respect to the judgment rendered March 31, 1981, the defendant's contention that the trial court's Allen charges coerced the jury into reaching a verdict is without merit. The instructions here were neutral, were directed at the jurors in general, and were not coercive (see, People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299; People v. Eley, 121 A.D.2d 462, 503 N.Y.S.2d 423). Although two Allen charges were given, that was not, in and of itself, improper because the important considerations for the court in determining whether to ask a jury to continue deliberations are whether "the jury has deliberated for an extensive period of time without agreeing upon a verdict...
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... ... 1982) (giving two Allen charges to jury not per se coercive); Jones v. State, 270 Ga. 25, 28, 505 S.E.2d 749 (1998) (same); People v. Brooks, 152 App. Div. 2d 591, 591-92, 543 N.Y.S.2d 704 (1989) (no error in giving two Allen charges as such charges did not coerce verdict); ... ...
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People v. Wiegert
... ... Kentucky (476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) that defendant was using his peremptory challenges in a discriminatory manner to exclude women from the jury ... The court did not err in giving a second Allen charge to the jury (see, People v ... Brooks, 152 A.D.2d 591, 591-592, 543 N.Y.S.2d 704, lv. denied 75 N.Y.2d 964, 556 N.Y.S.2d 249, 555 N.E.2d 621); the charge was balanced and did not coerce the jury to reach a verdict (see, People v. Abston, 229 A.D.2d 970, 645 N.Y.S.2d 690, lv. denied 88 N.Y.2d 1066, 651 N.Y.S.2d 410, 674 N.E.2d 340; ... ...
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