| People v Canales |
| 2011 NY Slip Op 07647 [88 AD3d 1007] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisCanales, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered January 6, 2010, convicting him of robbery in the first degree, criminal contempt inthe first degree (three counts), criminal contempt in the second degree, resisting arrest, andunlawful possession of marijuana, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenges to the alleged instances of prosecutorial misconduct insummation are unpreserved for appellate review (see People v Medina, 53 NY2d 951,953 [1981]; People v Beam, 78AD3d 1067, 1068 [2010]; People v McHarris, 297 AD2d 824, 825 [2002]). In anyevent, the prosecutor's comments constituted fair comment on the evidence, were responsive tothe defendant's summation arguments and theories (see People v Halm, 81 NY2d 819,821 [1993]; People v Spencer, 87AD3d 751, 753-754 [2011]; People v Sydnor, 281 AD2d 499, 499 [2001]), or werewithin the bounds of fair rhetorical comment (see People v Galloway, 54 NY2d 396, 399[1981]; People v Flores, 191 AD2d 306 [1993]).
The defendant's contention that the trial court's Allen charge (see Allen v UnitedStates, 164 US 492 [1896]) was coercive is also unpreserved for appellate review, sincedefense counsel did not object to the instructions given by the court (see CPL 470.05 [2];People v Valencia, 80 AD3d632, 633 [2011]; People vCoad, 60 AD3d 963, 964 [2009]). In any event, although the court "did not expresslyinstruct that each juror was entitled to maintain 'conscientiously held opinions', the charge as awhole was balanced, proper, and encouraging rather than coercive" (People v Kinard, 215AD2d 591, 591 [1995]). "At no point did the court urge that a dissenting juror abandon his or herown conviction and join in the opinion of others, attempt to shame the jurors into reaching averdict, or endeavor to compel the jurors to agree upon a particular result" (id.; seePeople v Coad, 60 AD3d at 965).
The defendant was not deprived of the effective assistance of counsel. Considering thetotality of the evidence, the law, and the circumstances of the case, trial counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]).Angiolillo, J.P., Leventhal, Austin and Roman, JJ., concur.