The People, etc., respondent, v. Luis Canales, appellant. (2011)

Argued—October 6, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered January 6, 2010, convicting him of robbery in the first degree, criminal contempt in the first degree (three counts), criminal contempt in the second degree, resisting arrest, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenges to the alleged instances of prosecutorial misconduct in summation are unpreserved for appellate review (see People v. Medina, 53 N.Y.2d 951, 953;  People v. Beam, 78 AD3d 1067, 1068;  People v. McHarris, 297 A.D.2d 824, 825).   In any event, the prosecutor's comments constituted fair comment on the evidence, were responsive to the defendant's summation arguments and theories (see People v. Halm, 81 N.Y.2d 819, 821;  People v. Spencer, 87 AD3d 751, 753–754;  People v. Sydnor, 281 A.D.2d 499, 499), or were within the bounds of fair rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 399;  People v. Flores, 191 A.D.2d 306).

The defendant's contention that the trial court's Allen charge (see Allen v. United States, 164 U.S. 492) was coercive is also unpreserved for appellate review, since defense counsel did not object to the instructions given by the court (see CPL 470.05[2];  People v. Valencia, 80 AD3d 632, 633;  People v. Coad, 60 AD3d 963, 964).   In any event, although the court “did not expressly instruct that each juror was entitled to maintain ‘conscientiously held opinions,’ the charge as a whole was balanced, proper, and encouraging rather than coercive” (People v. Kinard, 215 A.D.2d 591, 591).  “At no point did the court urge that a dissenting juror abandon his or her own conviction and join in the opinion of others, attempt to shame the jurors into reaching a verdict, or endeavor to compel the jurors to agree upon a particular result” (id.;   see People v. Coad, 60 AD3d at 965).

The defendant was not deprived of the effective assistance of counsel.   Considering the totality of the evidence, the law, and the circumstances of the case, trial counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712).

ANGIOLILLO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court