PEOPLE v. FERGUSON (1997)

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered March 16, 1995, convicting each defendant, after a jury trial, of robbery in the second degree, and sentencing each defendant to a term of 5 to 15 years, unanimously affirmed.   Judgment, same court and Justice, rendered March 16, 1995, convicting defendant Ferguson, upon his plea of guilty, of burglary in the second degree, and sentencing him to a term of 4 to 12 years, concurrent to his above sentence, unanimously affirmed.

Defendants' challenges to the court's Allen charge are unpreserved for appellate review (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).  Were we to consider the matter in the interest of justice, the charge was warranted, and, when viewed as a whole, was sufficiently balanced (see, People v. Alvarez, 86 N.Y.2d 761, 631 N.Y.S.2d 130, 655 N.E.2d 171).   There is no merit to the suggestion that the court should have declared a mistrial, sua sponte.

The court properly exercised its discretion in declining to reopen the Wade hearing (see CPL 710.40[4];  People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980) when it was revealed at trial that the complainants had viewed numerous photographs without making any identification.   Under all the circumstances, these facts could not have had any effect on the suppression issue (see, People v. Gourdine, 223 A.D.2d 428, 636 N.Y.S.2d 760, lv. denied 88 N.Y.2d 848, 644 N.Y.S.2d 694, 667 N.E.2d 344;  People v. Liggins, 159 A.D.2d 443, 553 N.Y.S.2d 329, lv. denied 76 N.Y.2d 738, 558 N.Y.S.2d 900, 557 N.E.2d 1196).

The court properly declined to deliver any missing witness charges (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).

MEMORANDUM DECISION.