| People v Thomas |
| 2014 NY Slip Op 00183 [113 AD3d 447] |
| January 14, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Lavonte Thomas, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered September30, 2011, convicting defendant, after a jury trial, of robbery in the second degree, andsentencing him to a term of four years, unanimously affirmed.
The verdict was not against the weight of the evidence. Defendant's accompliceliability could reasonably be inferred from the chain of events (see People vCabey, 85 NY2d 417 [1995]), which supports the inference that defendantintentionally took part in the robbery by leading the victim, a pizza deliveryman, into atrap. Defendant's conduct and that of the other participant in the crime "made little senseunless defendant was a participant and not a spectator" (People v Marte, 7 AD3d405, 406 [1st Dept 2004], lv denied 3 NY3d 677 [2004]).
The court's response to the deliberating jury's deadlock note was "simplyencouraging rather than coercive" (People v Ford, 78 NY2d 878, 880 [1991]).Rather than giving a full Allen charge (see Allen v United States, 164 US492 [1896]), the court merely asked the jury, which had been deliberating for only threehours, to keep trying to reach a verdict if possible. There was no language that can beviewed as coercive, or disparaging of the jury's failure to reach a verdict. Accordingly,the absence of language instructing the jurors to maintain their conscientiously heldbeliefs does not require reversal.
Defendant's argument that the prosecutor "impeached" her own witness duringsummation is without merit. The prosecutor was entitled to make record-based argumentsto explain a discrepancy between the respective recollections of the victim and adetective. Defendant's remaining challenges to the prosecutor's summation areunpreserved and we decline [*2]to review them in theinterest of justice. As an alternative holding, we find no basis for reversal (see Peoplev Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998];People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lvdenied 81 NY2d 884 [1993]). Concur—Sweeny, J.P., Renwick, Andrias,Freedman and Feinman, JJ.