Opinion
July 12, 1996
Appeal from the Oneida County Court, Mulroy, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that his retrial was barred by double jeopardy because the prosecutor deliberately provoked defendant to seek a mistrial. We disagree. Although the prosecutor acted improperly in questioning a prosecution witness who changed his previous testimony that defendant was the shooter, there is no basis in the record to justify an inference that the prosecutor's misconduct was motivated by bad faith and was designed to provoke a mistrial motion ( see, Matter of Potenza v. Kane, 79 A.D.2d 467, 470-471, lv denied 53 N.Y.2d 606; see also, Oregon v Kennedy, 456 U.S. 667, 673; United States v. Dinitz, 424 U.S. 600, 611; Matter of Davis v. Brown, 87 N.Y.2d 626).
We likewise reject the contention of defendant that, upon retrial, County Court erred in denying his motion for a mistrial based on the prosecutor's improper comments on summation concerning a deceased witness. The decision whether to grant a mistrial is within the sound discretion of the trial court and should not be disturbed, particularly where, as here, the decision involves the trial court's assessment of the impact of certain conduct upon a jury ( see, Hall v. Potoker, 49 N.Y.2d 501, 505; People v. Smith, 187 A.D.2d 942, 943; People v. Banks, 130 A.D.2d 498, lv denied 70 N.Y.2d 709). Additionally, the court's curative instruction minimized any prejudice caused by the prosecutor's comments ( see, People v. Smith, supra, at 943; People v. Banks, supra).
Defendant further contends that the court's Allen charge was coercive, mandating reversal ( see, Allen v. United States, 164 U.S. 492, 501-502). It is well settled that, after a jury announces that it is deadlocked, a court is permitted to give an Allen charge to assist the jury in its deliberations by encouraging them "to adhere to their oaths and make one final effort to review the evidence and reach a verdict one way or the other" ( People v. Pagan, 45 N.Y.2d 725, 727). It is impermissible, however, for a court to attempt to coerce or compel a jury to reach a verdict in its Allen charge ( see, People v. Pagan, supra, at 726-727; People v. Ali, 65 A.D.2d 513, 514, affd 47 N.Y.2d 920). Based on our review of the court's Allen charge, we conclude that the court did not coerce or compel the jury to reach a verdict ( see, People v. Williams, 210 A.D.2d 966, lv denied 85 N.Y.2d 982; People v. Novak, 179 A.D.2d 1053, lv denied 79 N.Y.2d 922).
We have reviewed defendant's remaining contentions and conclude that they are without merit.