PEOPLE v. KENDRICK (1998)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered February 15, 1996, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 Preliminarily, it is noted that the defendant relies on portions of the trial record in support of his contention that a lineup was unduly suggestive.   An appellate court is “precluded from reviewing trial testimony in determining whether the hearing court acted properly” (People v. Hucks, 175 A.D.2d 213, 214, 572 N.Y.S.2d 352;  see also, People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159;  People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306;  People v. Kwang Young Choung, 229 A.D.2d 448, 449, 645 N.Y.S.2d 84).   The propriety of the hearing court's ruling must be determined only in light of the evidence that was before that court (see, People v. Gonzalez, supra).   Since the defendant did not seek to reopen the hearing based on the trial testimony or move for a mistrial, the instant issue is not properly before this court (see, People v. Gaston, 239 A.D.2d 356, 657 N.Y.S.2d 975;  People v. Ore, 157 A.D.2d 749, 551 N.Y.S.2d 531;  People v. Hucks, supra).   In any event, the claim is without merit.

 The defendant's contention that the court's Allen charge (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was impermissibly coercive is unpreserved for appellate review, as he neither requested a specific charge nor objected to the charge as given (see, CPL 470.05[2];  People v. Marero, 208 A.D.2d 769, 617 N.Y.S.2d 780).   In any event, the court's supplemental charge was neutral and not coercive.   It was directed to all jurors in general and noted that no juror should abandon a firmly and conscientiously held belief to acquiesce in the opinion of the majority or to reach a certain result.   The court, in essence, simply encouraged the jurors to fulfill their oaths by openly and carefully listening to each other's positions and deliberating with a view toward reaching an agreement.   Thus, the charge as a whole was not improper (see, People v. Alvarez, 86 N.Y.2d 761, 763, 631 N.Y.S.2d 130, 655 N.E.2d 171;  People v. Fleury, 177 A.D.2d 504, 575 N.Y.S.2d 713).

The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.