Opinion
July 3, 1989
Appeal from the Supreme Court, Kings County (Deeley, J.).
Ordered that the judgments are affirmed.
With respect to the judgment rendered January 27, 1981, any issue of law with respect to the alleged defect in the trial court's instructions to the jury has not been preserved for appellate review (see, CPL 470.05; People v Giammarino, 105 A.D.2d 802). In any event, while the court's statement to the jury concerning whether "your minds are wavering" or "the scales are even" within the reasonable doubt charge was technically improper (see, People v Martinez, 118 A.D.2d 661), the charge as a whole correctly explained the concept of reasonable doubt to the jury and therefore did not deprive the defendant of a fair trial (see, People v Cadorette, 83 A.D.2d 908, affd 56 N.Y.2d 1007; People v Townes, 104 A.D.2d 1057).
With respect to the judgment rendered March 31, 1981, the defendant's contention that the trial court's Allen charges coerced the jury into reaching a verdict is without merit. The instructions here were neutral, were directed at the jurors in general, and were not coercive (see, People v Pagan, 45 N.Y.2d 725; People v Eley, 121 A.D.2d 462). Although two Allen charges were given, that was not, in and of itself, improper because the important considerations for the court in determining whether to ask a jury to continue deliberations are whether "[t]he jury has deliberated for an extensive period of time without agreeing upon a verdict with respect to any of the charges submitted and [whether] the court is satisfied that any such agreement is unlikely within a reasonable time" (CPL 310.60 [a]; see generally, Matter of Plummer v Rothwax, 63 N.Y.2d 243). We find that based upon the circumstances, both the court's first and second Allen charges were proper.
During summation the prosecutor improperly gave his opinion as to the credibility of witnesses. However, the court's and the prosecutor's subsequent comments to the jury effectively cured any possible prejudice which might have resulted (see, People v Turner, 141 A.D.2d 878).
The defendant's remaining contentions are either unpreserved for appellate review or are without merit. Bracken, J.P., Rubin, Spatt and Sullivan, JJ., concur.