PEOPLE v. FONG (2005)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered May 1, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 1/212 to 13 years, unanimously affirmed.

 Defendant failed to preserve his argument that the court's Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896] ) was coercive (see People v. Rodriguez, 1 A.D.3d 150, 766 N.Y.S.2d 557 [2003], lv. denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908 [2003];  People v. Perdomo, 204 A.D.2d 128, 614 N.Y.S.2d 105 [1994], lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 23, 639 N.E.2d 763 [1994] ).   The positions defense counsel took before and after the court delivered the Allen charge were insufficient to alert the court to this claim (compare People v. Aponte, 2 N.Y.3d 304, 307, 778 N.Y.S.2d 447, 810 N.E.2d 899 [2004] ).   Moreover, defendant declined the court's offer to deliver an amended Allen charge, insisting instead on the inappropriate remedy of a mistrial.   We decline to review this issue in the interest of justice, and, were we to review it, we would find that under these circumstances the charge was not coercive.   However, we note with some dismay that the trial judge framed his own impromptu Allen charge, as he did in People v. Aponte, id., including remarks that, as in Aponte, seemed to imply that the jurors were failing in their duties and to attempt to shame them into reaching a verdict.   Although in this instance the charge was generally less prejudicial overall than that in Aponte, and the several additional hours of deliberations thereafter tends to indicate that the jurors did not feel coerced (compare id. at 309, 778 N.Y.S.2d 447, 810 N.E.2d 899), each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created.

 Although there was an insufficient factual predicate for expert testimony as to the roles of the varying participants in street-level narcotics sales (see People v. Smith, 2 N.Y.3d 8, 776 N.Y.S.2d 209, 808 N.E.2d 344 [2004] ), the error was harmless because there is otherwise overwhelming evidence of defendant's guilt and there is no significant probability that the error affected the verdict (id. at 12-13, 776 N.Y.S.2d 209, 808 N.E.2d 344).