657 N.Y.S.2d 49 | N.Y. App. Div. | 1997
—Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered August 18, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.
In light of the jury’s continuous deliberations, requests for readbacks and instructions, and retracted announcement that it had reached a verdict, the court properly exercised its discretion in declining to declare a mistrial and, instead, delivering several Allen (Allen v United States, 164 US 492) charges (Matter of Plummer v Rothwax, 63 NY2d 243, 250-251; People v Vincent, 231 AD2d 444, lv denied 89 NY2d 931). Defendant’s remaining claims relating to the court’s Allen charges are unpreserved and without merit.
Since it is undisputed that Supreme Court, Bronx County, had jurisdiction over this case, defendant’s conviction may not be invalidated on the basis of any alleged illegality in the assignment of a Judge of the Criminal Court to preside over defendant’s trial as an acting Justice of the Supreme Court (People ex rel. Devine v Scully, 110 AD2d 733). Therefore, defendant lacks standing to raise any of his various objections, under Federal and State law, to the long-standing practice (see, Matter of Taylor v Sise, 33 NY2d 357; People v Burgos, 103
Defendant’s contention concerning the court’s response to a note from an individual juror is unpreserved and we decline to review it in the interest of justice (see, People v DeRosario, 81 NY2d 801, 803; People v Albert, 206 AD2d 320, affd 85 NY2d 851).
Defendant was properly sentenced as a persistent violent felony offender. We perceive no abuse of sentencing discretion. Concur—Sullivan, J. P., Milonas, Nardelli, Williams and Mazzarelli, JJ.
