| People v Medina |
| 2009 NY Slip Op 08485 [67 AD3d 548] |
| November 19, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JuanMedina, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered May 4, 2007,convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to aterm of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to theextent of reducing the sentence to a term of eight years, and otherwise affirmed.
Defendant did not preserve his present challenge to the portion of the court's jury instructionon robbery that defined the term larceny. Regardless of what defense counsel may have beenalluding to in his comments at the end of the charge (see People v Borrello, 52 NY2d952 [1981]), these comments were insufficient to convey a request that the court not only give adefinition of larceny that included an intent to "deprive another of property or to appropriate thesame to himself or a third person," as set forth in Penal Law § 155.05 (1), but alsoread to the jury the definitions of "deprive" and "appropriate" set forth in subdivisions (3) and (4)of Penal Law § 155.00. We decline to review this claim in the interest of justice. As analternative holding, we find no basis for reversal, because, in the factual context presented, theabsence of these definitions did not cause any prejudice.
The court properly exercised its discretion when it denied defendant's mistrial motions madeafter notes from the deliberating jury indicated it was deadlocked, and instead delivered severalAllen charges (see Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984]).The progress of deliberations that continued after each Allen charge indicated that therehad not been an unyielding breakdown in deliberations, and that the charges did not coerce averdict (see People v Campos, 239 AD2d 185 [1997], lv denied 90 NY2d 902[1997]; People v Bonilla, 225 AD2d 330 [1996], lv denied 88 NY2d 933[1996]). The court also properly exercised its discretion by not asking the jury about thelikelihood of a verdict or conducting a separate colloquy with a possible holdout juror.Defendant's challenges to the content of the court's Allen charges and related commentsto the jury are unpreserved and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits.
The court also properly exercised its discretion when it declined to conduct an inquiry of thejurors to ascertain if they had read media accounts of the trial. The court was appropriatelyconcerned that doing so might draw the jury's attention to the existence of particular reports and[*2]thereby create prejudice where none might already exist (see People v Shulman, 6 NY3d 1,32 [2005], cert denied 547 US 1043 [2006]). While the record indicates that a juror wasaware that there had been a media report relating to the trial, there was no indication that anyjuror had violated the court's instructions to avoid reading or listening to such reports (see People v Erving, 55 AD3d419 [2008], lv denied 11 NY3d 897 [2008]).
We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Friedman,Moskowitz, Freedman and Abdus-Salaam, JJ.