| People v Aleman |
| 2008 NY Slip Op 01440 [48 AD3d 305] |
| February 19, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JuanCarlos Aleman, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedDecember 14, 2005, convicting defendant, after a jury trial, of criminal possession of a controlledsubstance in the first and third degrees, and sentenced him to concurrent terms of 25 years to lifeand 8
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis to disturb the jury's credibility determinations, including its rejection of defendant'stestimony. "The People's evidence established more than [defendant's] mere presence but [his]presence under a particular set of circumstances from which a jury could infer possession"(People v Bundy, 90 NY2d 918, 920 [1997]). The evidence supports the conclusion thatdefendant was a knowing participant in a large-scale drug enterprise. The circumstances of hisproximity to very large amounts of drugs and money were entirely inconsistent with his claimthat his involvement was unwitting.
The court's Allen-type charge (see Allen v United States, 164 US 492 [1896])was not coercive or prejudicial because it did not urge the jurors to agree upon a verdict orobligate them to convince one another of the correctness of their views, and it did not ask anyjurors to surrender their conscientiously held beliefs (see People v Ford, 78 NY2d 878,880 [1991]). The court, in responding to a jury note that indicated that the jurors were refusing tofollow the court's circumstantial evidence charge and that some of the jurors were improperlyconcerned about the defendants' imprisonment, properly reminded the jurors of their duty tofollow the law (see People v Leach,6 AD3d 238, 239 [2004], lv denied 3 NY3d 643 [2004]). Although the court, onceagain, framed its "own impromptu Allen charge" (People v Fong, 16 AD3d 179, 180 [2005], lv denied 4NY3d 886 [2005]), instead of using the Criminal Jury Instructions, the fact that the jurycontinued to deliberate for several days thereafter, and acquitted defendant of money-launderingcharges, indicates that the charge did not have a coercive effect (compare People v Aponte, 2 NY3d304, 309 [2004]). Viewing the charge in context and under all the circumstances, weconclude that it did not [*2]deprive defendant of anyconstitutional right (see Lowenfield v Phelps, 484 US 231, 237-241 [1988]). However,we once again express our dismay that the court saw fit to deviate from the Criminal JuryInstructions.
Defendant's complaint about the court's response to a jury note requesting further instructionson the issue of credibility is unpreserved (People v Buckley, 75 NY2d 843 [1990]), andwe decline to review it in the interest of justice. As an alternative holding, we also reject it on themerits. Defendant improperly raises for the first time in his reply brief an argument that the courtcommitted reversible error in its supplemental instruction on the meaning of a reasonablealternative hypothesis. In any event, we find that argument without merit.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Williams,Sweeny, Catterson and Moskowitz, JJ.