PEOPLE v. GIL (1999)

Appeal by the defendant from a judgment of the County Court, Westchester County (Murphy, J.), rendered February 29, 1996, convicting him of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the court committed reversible error when, in response to a note from the jury requesting that certain testimony be read back, the court suggested that the jury also request that certain police testimony be read back, thus signaling the court's support of the prosecution's theory.   However, when giving his statement to the police, the cab driver whose testimony was requested by the jury was shown three photographs and asked to identify the person in each photograph.   Attached to his statement was the name of the individual that he identified and the number assigned to that photograph.   However, when the cab driver gave his statement to the detective at the scene, the detective mistakenly wrote the wrong numbers on the photographs for the individuals they represented.   Thus, it appeared that the cab driver's identification of the defendant as the one who flagged down the cab and who sat in the front seat was erroneous.   Since the trial court was aware that the testimony requested by the jury, standing alone and without the testimony of the detective regarding his error, would mislead the jury on the issue of the defendant's identity and position in the cab, the court properly took the initiative to clarify the cab driver's testimony (see, People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243;  cf., People v. Melendez, 227 A.D.2d 646, 643 N.Y.S.2d 607).  “A Justice is generally not precluded from taking an active role in the truth-seeking process * * * and indeed, may take the initiative to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial” (People v. Melendez, supra, at 647, 643 N.Y.S.2d 607).

 In addition, the court's Allen charge was proper.   When viewed as a whole, the instruction was simply encouraging rather than coercive and was appropriate in light of the fact that the jury had only been deliberating a short time when they reported that they were deadlocked (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034).

The sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.