Summary
In People v. Arnold, 226 A.D.2d 468, 468-69 (2d Dept. 1996), defendant's claim that the Allen charge was coercive was not preserved where defense counsel neither requested a specific Allen charge nor objected to the charge given.
Summary of this case from Alexander v. GrahamOpinion
April 8, 1996
Appeal from the County Court, Nassau County, Goodman, J., Wexner, J.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence is not legally sufficient to establish his guilt of rape in the first degree beyond a reasonable doubt is unpreserved for appellate review ( see, CPL 470.05; People v. Barrett, 166 A.D.2d 657, 658; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence ( see, CPL 470.15).
The defendant has failed to preserve for appellate review his contention that the trial court's Allen charge ( see, Allen v United States, 164 U.S. 492) coerced the jury to return a verdict after it had reported a deadlock. Defense counsel neither requested a specific Allen charge nor objected to the charge that was given by the court ( see, People v. Marero, 208 A.D.2d 769; People v. Perdomo, 204 A.D.2d 128; People v. Velez, 150 A.D.2d 514). In any event, the charge was neutral; it was directed at the jurors in general; and it did not coerce the jurors to reach a verdict or to achieve a specific result ( see, People v. Odome, 192 A.D.2d 726; People v. Fleury, 177 A.D.2d 504; People v. Brooks, 152 A.D.2d 591).
We agree with the defendant that the prosecutor misstated the law during his summation by defining rape as sexual intercourse without consent, thereby omitting the element of forcible compulsion. However, that comment could not have been interpreted by the jury as an instruction on the law since the prosecutor previously stated that the Judge would instruct it on the law and the court admonished the prosecutor to avoid discussing the law in his summation ( see, People v. Rosenblitt, 198 A.D.2d 382, 383; People v. Hart, 176 A.D.2d 148). Moreover, in light of the trial court's charge to the jury that the People were required to establish that the defendant engaged in sexual intercourse with the victim, that the victim did not consent, and that the victim's lack of consent resulted from the use of forcible compulsion by the defendant, there is no possibility that the jury found the defendant guilty without concluding that the victim's lack of consent resulted from his use of forcible compulsion ( see, People v. Rosenblitt, supra; People v. Hart, supra).
The hearing court properly denied the branch of the defendant's omnibus motion which was to suppress his statements to the police. The defendant was properly advised of his constitutional rights pursuant to Miranda v. Arizona ( 384 U.S. 436), and he waived his rights prior to making the statements in question ( see, North Carolina v. Butler, 441 U.S. 369; People v. Sirno, 76 N.Y.2d 967; People v. Davis, 55 N.Y.2d 731; People v. Rose, 204 A.D.2d 745).
The defendant's sentence is not excessive ( see, People v Sanchez, 131 A.D.2d 606, 608-609; People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is unpreserved for appellate review. Thompson, J.P., Joy, Krausman and McGinity, JJ., concur.