| People v Smith |
| 2016 NY Slip Op 00527 [135 AD3d 970] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ryan S. Smith, Appellant. |
Lynn W. L. Fahey, New York, NY (Elizabeth Budnitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered July 15, 2013, convicting him of robbery in the 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 hisconviction of robbery in the second degree because the prosecution failed to establish hisidentity as the perpetrator of the crime is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Delgado, 109 AD3d 483 [2013]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishhis identity as the perpetrator (see People v Gilocompo, 125 AD3d 1000, 1001 [2015]; People v Delgado, 109 AD3d483 [2013]; People vJenkins, 93 AD3d 861, 861 [2012]; People v Amico, 78 AD3d 1190 [2010]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
The defendant's claim that the trial court's Allen charge (see Allen vUnited States, 164 US 492 [1896]) coerced the jury into returning a verdict after theyhad reported a deadlock is unpreserved for appellate review, as defense counsel neitherrequested a specific charge nor objected to the charge given by the court (see Peoplev Velez, 150 AD2d 514 [1989]). In any event, such instructions are proper providedthey do not (1) urge a dissenting juror to abandon his or her convictions and join in theopinion of other jurors, (2) attempt to coerce or compel the jury to reach a particularverdict, or (3) shame the jury into reaching a verdict (see People v Bastien, 180AD2d 691, 692 [1992]; People v Austin, 168 AD2d 502, 502-503 [1990]). In thiscase, the instructions to the jury were free of these errors.
Because the Allen charge was not improper, the defendant's ineffectiveassistance of [*2]counsel claim, based solely on hisattorney's failure to object to the charge, is without merit (see People v McKenzie, 48AD3d 594, 595 [2008]; People v Stover, 36 AD3d 837, 838 [2007]). Dillon, J.P.,Dickerson, Miller and Duffy, JJ., concur.