PEOPLE v. WOODS (1999)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Anthony WOODS, appellant.

Decided: June 28, 1999

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ.

Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, and Mitchell B. Weiss of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered August 14, 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.

During its deliberation, the jury sent a note to the trial court stating that it had reached a verdict with respect to one of the offenses submitted to it but could not reach a verdict on the other offense. The trial court properly found that there was a reasonable possibility of ultimate agreement on the unresolved offense and did not err in failing to poll the jury as to the seriousness of their alleged deadlock prior to instructing the jury to continue its deliberations (see, CPL 310.70[1][b] ). Further, the Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528), subsequently given by the court, viewed as a whole, was not unbalanced or coercive (see, People v. Cowen, 249 A.D.2d 560, 672 N.Y.S.2d 138).

MEMORANDUM BY THE COURT.

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