PEOPLE v. CANNON (1997)

Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered January 20, 1994, convicting defendant, after a jury trial, of kidnapping in the second degree and robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.

 The trial court properly denied severance because there was no showing that the core of the defenses, each of which claimed misidentification, were in irreconcilable conflict (People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Dillon, 201 A.D.2d 265, 607 N.Y.S.2d 265, lv denied 83 N.Y.2d 966, 616 N.Y.S.2d 19, 639 N.E.2d 759).   The court's repeated instructions to the jury to draw no adverse inference from the absence of the co-defendant and to consider the evidence against each defendant separately were presumably understood and followed by the jury (People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710), and assured no undue prejudice to defendant stemming from the absence of the co-defendant.

 Defendant's current claim regarding the court's Allen charge is unpreserved (People v. Jackson, 209 A.D.2d 247, 248, 618 N.Y.S.2d 340, lv denied 85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630).   In any event, when viewed as a whole, the charge properly encouraged the jurors to reach a verdict without yielding conscientiously held views (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034).   Defendant's claim of coercion is negated by the circumstances that, following delivery of the Allen charge, the jury requested further readback and instructions, and continued deliberations into the next day (People v. Bonilla, 225 A.D.2d 330, 638 N.Y.S.2d 636, lv denied 88 N.Y.2d 933, 647 N.Y.S.2d 167, 670 N.E.2d 451).

 The merger doctrine does not require dismissal of the kidnapping count, because the gunpoint kidnapping, that included handcuffing and abandonment of the victim in an isolated area, “was not a minimal intrusion necessary and integral to another crime” (People v. Gonzalez, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 603 N.E.2d 938).

We conclude from the available record that defendant received effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We have reviewed defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.