Opinion
November 30, 1987
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the judgment is affirmed.
The record indicates that the trial court properly apprised the jury prior to its deliberations of its responsibilities. These instructions comport with the suggested charge set forth in 1 CJI(NY) 42.60 as well as the recommendation of the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Trial by Jury, § 5.4 (1968), quoted in 5 Zett, New York Criminal Practice ¶ 33.1(5) (at 33-36). As both the defendant and his counsel indicated a desire to accept the verdict on counts three and four of the indictment and accept a hung jury as to counts one and two and specifically refused an Allen charge despite the court's offer of such a charge, the court's failure to deliver the Allen charge was a proper response to the defendant's trial strategy.
With respect to the defendant's claim of prosecutorial misconduct, the record indicates that counsel for both sides were overzealous and, although certain remarks would have been better left unsaid, the trial court promptly sustained objections and maintained an orderly trial allowing both sides to present their theories in full. The defendant was not denied a fair trial (see, People v. Galloway, 54 N.Y.2d 396; People v. Baldo, 107 A.D.2d 751). Mangano, J.P., Thompson, Kunzeman and Harwood, JJ., concur.