48 A.D.2d 646 | N.Y. App. Div. | 1975
Judgment entered in the Supreme Court, Bronx County, on September 26, 1973, upon a jury verdict convicting the defendant of robbery in the first degree and possession of a weapon as a felony and imposing sentence, modified, on the law, to the extent of reversing the conviction and sentence upon the count charging possession of a weapon as a felony and dismissing said charge. As so modified the judgment is affirmed. The findings of fact implicit in the verdict of the jury are affirmed. The proof establishes that defendant used a gun to threaten and rob his victims. However, the possession of the weapon was merely incidental to and part of that crime—robbery in the first degree. The People concede and we find that the facts fail to show the commission by defendant of the separate crime of possessing the gun before or following the robbery. (People v Quick, 30 AD2d 561.) We are unanimous in finding that the case was properly submitted to the jury, but our two dissenting brethren are of the opinion that the verdict was coerced and that the prosecutor exceeded his proper role during summation and, for those reasons, they would reverse. We disagree. The jury did not deliberate two and one-half days and two nights. The actual deliberation time was about 20 hours during the elapsed two days and two nights. The trial court’s urging to the jury was in no wise coercive. Its words were gentle and persuasive. The verdict was freely and intelligently arrived at. The court expressly cautioned the jury on more than one occasion that no juror should surrender a conscientiously held view unless properly convinced of errors and that no juror was to vote for any verdict except his own. That the jury acted deliberately and freely is amply established by their continuance of deliberation for almost three hours after the final supplementary instructions. The supplemental charge to encourage the jury to seek agreement after announcing a deadlock was proper. (Allen v United States, 164 US 492.) The Allen charge is approved in New York if not coercive. (People v Randall, 9 NY2d 413, 425; People v Albanese, 27 AD2d 820, revd on other grounds 19 NY2d 965.) We should not overturn the trial court on a discretionary ruling absent abuse, here completely lacking. Finally, we perceive no impropriety in the prosecutor’s summation. In large measure he was replying to defense counsel’s argument to the jury. This is permissible. (People v Castillo, 16 AD2d 235.) We have carefully reviewed the prosecutor’s statements and find no prejudice. Defense counsel failed to object to any of the remarks or gestures complained of as prejudicial, rendering them unavailable as issues on appeal. (CPL 470.05; People v Fonseca, 36 NY2d 133; People v Vidal, 26 NY2d 249.) The father and daughter, victims of the robbery, positively identified the defendant as the individual who robbed them at gunpoint. Their testimony having been believed, the evidence of defendant’s guilt was clear. He received a fair trial and the jury’s verdict should be respected. Concur—Markewich, Kupferman and Nunez, JJ.; Stevens, P. J., and Murphy, J., dissent in the following memorandum by Murphy, J.: We vote to reverse the instant conviction and remand for a new trial. Nine days after a Bronx tavern owner claimed he had been robbed, at gunpoint, of cash and his pistol, two