| People v Henderson |
| 2008 NY Slip Op 03709 [50 AD3d 525] |
| April 24, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Henderson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January27, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substancein the third degree, and sentencing him, as a second felony drug offender, to a term of 4½ to9 years, unanimously affirmed.
The court properly exercised its discretion when it denied defendant's mistrial motion madeafter the deliberating jury indicated it was deadlocked (see Matter of Plummer vRothwax, 63 NY2d 243, 250 [1984]). Although deliberations had been spread out overseveral days, the total amount of time expended in actual deliberations was not particularlylengthy, and there is no reason to believe the jury reached a verdict under coercive circumstances.
All of defendant's challenges to the court's main charge and its responses to jury notes,including its response to the jury's final deadlock note, are unpreserved and we decline to reviewthem in the interest of justice. As an alternative holding, we also reject each of them on themerits. Although the court made inappropriate departures from standard instructions, includingthe use of language that we disapproved in People v Johnson (11 AD3d 224 [2004]), nothing in the charge wasconstitutionally deficient. There is no reason to believe the jury could have been misled intobelieving that the People's burden was anything less than proof beyond a reasonable doubt (see People v Gortspujuls, 44 AD3d368 [2007], lv denied 9 NY3d 1006 [2007]). Unlike the situation in Johnson,any references to numerical majorities or "probabilities" occurred in completely differentcontexts from any discussion of the burden of proof, which the court consistently stated to bebeyond a reasonable doubt. The instruction delivered in response to the last jury note, whichdefendant characterizes as an Allen charge (Allen v United States, 164 US 492[1896]), was not coercive or prejudicial because it did not urge the jurors to agree upon a verdictor obligate 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[1991]). Moreover, this instruction never actually urged or requested the jury to reach aunanimous verdict; instead, its primary focus was to remind the jury of the presumption ofinnocence, the reasonable doubt standard and the duty to follow the law as charged. Finally, sincenothing in any of the main and supplementary jury instructions on this appeal was [*2]constitutionally deficient, the absence of any objections by trialcounsel did not deprive defendant of effective assistance.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properlypermitted inquiry into drug offenses that were relevant to defendant's credibility as a witness.Concur—Tom, J.P., Mazzarelli, Williams and Sweeny, JJ.