People v. Smalls

• Decision Date: 04 March 1997
• Citation: 654 N.Y.S.2d 362,237 A.D.2d 116
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin SMALLS, Defendant-Appellant.

Page 362

654 N.Y.S.2d 362

237 A.D.2d 116

The PEOPLE of the State of New York, Respondent, v. Kevin SMALLS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 4, 1997.

Howard B. Sterinbach, for Respondent.

Jeffrey I. Richman, for Defendant-Appellant.

Before MILONAS, J.P., and NARDELLI, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered December 2, 1987, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.

The court's Allen charge was appropriate, since it reminded the jurors of their duty to deliberate and did nothing to urge any jurors to surrender their conscientiously-held positions (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034). Furthermore, the record belies any claim that the Allen charge was coercive, as the jury continued deliberating for another day after the charge, and it requested further readbacks of the testimony before rendering its verdict (see, People v. Bonilla, 225 A.D.2d 330, 638 N.Y.S.2d 636, lv. denied 88 N.Y.2d 933, 647 N.Y.S.2d 167, 670 N.E.2d 451).

The court's charge concerning the effect of the nonrecovery of the proceeds of the crime upon the People's burden of proof does not require reversal (see, People v. Covington, 191 A.D.2d 285, 595 N.Y.S.2d 32, lv. denied 81 N.Y.2d 1071, 601 N.Y.S.2d 591, 619 N.E.2d 669). The charge did not direct the jury to ignore a key element of the defense, and did not otherwise cause any prejudice to defendant, since the undisputed passage of nearly 3 months between the crime and the arrest rendered the nonrecovery of the proceeds "an unremarkable event, easily accounted for" (People v. Watkins, 157 A.D.2d 301, 307, 556 N.Y.S.2d 541, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 779, 615 N.E.2d 236).

Defendant's vague objection to marshalling of evidence, per se, failed to preserve his present claim that the court's marshalling was unbalanced. Were we to review this claim in the interest of justice, we would find that the court's marshalling did not deprive defendant of a fair trial (see, People v. Culhane, 45 N.Y.2d 757, 758, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. denied 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706).

Defendant's remaining contentions are both unpreserved for appellate review and without merit.