| People v Muirhead |
| 2013 NY Slip Op 06593 [110 AD3d 833] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sophia Muirhead, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and HowardB. Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ozzi, J.), rendered June 23, 2011, convicting her of criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support herconviction is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the People's contention, the defendant preserved for appellate review herclaim that the gun recovered by a police officer was improperly admitted into evidencedue to the People's failure to establish an adequate chain of custody. However, since theofficer marked the gun with his initials when he vouchered it, rendering it readilyidentifiable, his identification at trial and testimony that it was in the same condition aswhen he recovered it was sufficient to warrant its admission into evidence (seePeople v McGee, 49 NY2d 48, 59-60 [1979]; People v Julian, 41 NY2d 340,343 [1977]; People v Wilson, 150 AD2d 628, 630 [1989]; People vCapers, 105 AD2d 842, 843 [1984]).
The defendant's contention that the trial court's Allen charge (see Allen vUnited States, 164 US 492 [1896]) was improper is only partially preserved forappellate review (see CPL 470.05 [2]). In any event, although the court "did notexpressly instruct that each juror was entitled to maintain 'conscientiously held opinions,'the charge as a whole was balanced, proper, and encouraging rather than coercive"(People v Kinard, 215 AD2d 591, 591 [1995]; see People v Canales, 88[*2]AD3d 1007, 1007-1008 [2011]). The court'sinstructions were directed at the jurors in general, and "did not urge that a dissentingjuror abandon his or her own conviction, attempt to coerce or compel the jury to reach aparticular verdict, or shame the jury into reaching a verdict" (People v McKenzie, 48 AD3d594, 595 [2008]; see People v Canales, 88 AD3d at 1008; People v Gonzalez, 70 AD3d855, 856 [2010]).
Because the Allen charge was not improper, the defendant's ineffectiveassistance of counsel claim, based solely on her attorney's failure to object to a portion ofthat charge, is without merit (see People v McKenzie, 48 AD3d at 595). Balkin,J.P., Leventhal, Austin and Roman, JJ., concur.