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

The PEOPLE of the State of New York, Respondent, v. Juan MEDINA, Defendant-Appellant.

Decided: November 19, 2009

TOM, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, ABDUS-SALAAM, JJ. Steven Banks, The Legal Aid Society, New York (Andrew C. Fine of counsel), and Cahill Gordon & Reindel LLP, New York (Noah H. Bishoff of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered May 4, 2007, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 8 years, and otherwise affirmed.

Defendant did not preserve his present challenge to the portion of the court's jury instruction on robbery that defined the term larceny.   Regardless of what defense counsel may have been alluding to in his comments at the end of the charge (see People v. Borrello, 52 N.Y.2d 952, 437 N.Y.S.2d 965, 419 N.E.2d 868 [1981] ), these comments were insufficient to convey a request that the court not only give a definition of larceny that included an intent to “deprive another of property or to appropriate the same to himself or a third person,” as set forth in Penal Law § 155.05(1), but also read to the jury the definitions of “deprive” and “appropriate” set forth in subdivisions three and four of Penal Law § 155.05.   We decline to review this claim in the interest of justice.   As an alternative holding, we find no basis for reversal, because, in the factual context presented, the absence of these definitions did not cause any prejudice.

 The court properly exercised its discretion when it denied defendant's mistrial motions made after notes from the deliberating jury indicated it was deadlocked, and instead delivered several Allen charges (see Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 250, 481 N.Y.S.2d 657, 471 N.E.2d 429 [1984] ).   The progress of deliberations that continued after each Allen charge indicated that there had not been an unyielding breakdown in deliberations, and that the charges did not coerce a verdict (see People v. Campos, 239 A.D.2d 185, 657 N.Y.S.2d 49 [1997], lv. denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 [1997];  People v. Bonilla, 225 A.D.2d 330, 638 N.Y.S.2d 636 [1996], lv. denied 88 N.Y.2d 933, 647 N.Y.S.2d 167, 670 N.E.2d 451 [1996] ).   The court also properly exercised its discretion by not asking the jury about the likelihood of a verdict or conducting a separate colloquy with a possible holdout juror.   Defendant's challenges to the content of the court's Allen charges and related comments to the jury are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.

 The court also properly exercised its discretion when it declined to conduct an inquiry of the jurors to ascertain if they had read media accounts of the trial.   The court was appropriately concerned that doing so might draw the jury's attention to the existence of particular reports and thereby create prejudice where none might already exist (see People v. Shulman, 6 N.Y.3d 1, 32, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert. denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006] ).   While the record indicates that a juror was aware that there had been a media report relating to the trial, there was no indication that any juror had violated the court's instructions to avoid reading or listening to such reports (see People v. Erving, 55 A.D.3d 419, 866 N.Y.S.2d 147 [2008], lv. denied 11 N.Y.3d 897, 873 N.Y.S.2d 273, 901 N.E.2d 767 [2008] ).

We find the sentence excessive to the extent indicated.