PEOPLE v. DAVIS (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (R.E. Rivera, J.), rendered October 30, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant argues that the Allen instructions (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) given to the jury, which twice sent notes to the Trial Judge stating that it was deadlocked, were coercive.   This contention is not preserved for appellate review, as the defendant neither requested a specific charge nor objected to the charge suggested and ultimately given by the court (see, CPL 470.05 [2];  People v. Velez, 150 A.D.2d 514, 541 N.Y.S.2d 109).   In any event, the instructions were proper.  Allen instructions are proper if they assist a jury in its deliberation by stressing the importance of reaching a verdict without forcing any juror to yield a conscientious belief (see, People v. Ali, 65 A.D.2d 513, 409 N.Y.S.2d 12, affd. 47 N.Y.2d 920, 419 N.Y.S.2d 487, 393 N.E.2d 481).   The instructions given in his case neither asked the jurors to abandon their own convictions, nor shamed them into reaching a verdict (see, People v. Bastien, 180 A.D.2d 691, 580 N.Y.S.2d 54;  People v. Austin, 168 A.D.2d 502, 562 N.Y.S.2d 745).   Contrary to the defendant's contention, the Trial Judge did not create a coercive climate merely by mentioning possible sequestration in an innocuous manner (see, People v. Sharff, 38 N.Y.2d 751, 381 N.Y.S.2d 48, 343 N.E.2d 765).  Thus, the Allen charge, viewed as a whole, was appropriate.

MEMORANDUM BY THE COURT.