PEOPLE v. COWEN

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

The PEOPLE, etc., Respondent, v. Eric COWEN, Appellant.

Decided: April 27, 1998

Before ROSENBLATT, J.P., and COPERTINO, GOLDSTEIN and McGINITY, JJ. Dale A. Black-Pennington, Forest Hills, for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Cheryl Hone, and Traci R. Turner, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rutledge, J.), rendered December 5, 1995, 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's contention that the court's Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was coercive is not preserved for appellate review since he did not raise a specific objection on that ground before the trial court (see, People v. Ramkisson, 245 A.D.2d 393, 666 N.Y.S.2d 447).   In any event, read as a whole, the court's Allen charge properly attempted to encourage the jury to continue its deliberations to reach a unanimous verdict (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034).   A proper Allen charge must not attempt to persuade jurors to abandon their beliefs or convictions, must not attempt to coerce dissenting jurors to reach a particular verdict, and must not attempt to shame the jury into reaching any verdict (see, People v. Perdomo, 204 A.D.2d 358, 611 N.Y.S.2d 560).   Although the court improvidently made reference to the costs incurred by the parties in prosecuting the first trial and asked the jury to try to reach a verdict so as to avoid the need for “another jury * * * to do the same thing all over again” (see, People v. Delaremore, 212 A.D.2d 804, 623 N.Y.S.2d 279;  People v. Johnson, 193 A.D.2d 695, 598 N.Y.S.2d 39), the court repeatedly emphasized that the jurors should not “surrender [their] conscientious convictions of what the truth is” and should not be pressured into reaching a verdict that was not their own (see, People v. Glover, 165 A.D.2d 761, 763, 564 N.Y.S.2d 273;  People v. Mack, 156 A.D.2d 158, 548 N.Y.S.2d 205).   While the court's reference to the costs was unfortunate and better left unsaid, on balance we find that the Allen charge was not coercive.

MEMORANDUM BY THE COURT.

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