Opinion
September 20, 1990
Appeal from the Supreme Court, New York County (Clifford A. Scott, J.).
Judgment, same court and Judge, rendered December 19, 1988, convicting defendant Harold Thomas, after a jury trial, of robbery in the second degree and sentencing him to 5 to 15 years' imprisonment, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).
Despite some confusion in the testimony of the arresting officer, the evidence at the joint trial clearly shows Glover was the principal actor in this knifepoint subway robbery, and that Thomas intentionally participated as an accomplice. The fact that Thomas' defense was that he was merely an innocent bystander, whereas Glover's defense was that he was mistakenly identified and not even present at the scene, did not raise an irreconcilable conflict warranting severance (cf., People v Mahboubian, 74 N.Y.2d 174).
It was not error to substitute an alternate for a juror who called in sick on the first morning of trial, especially in light of the fact that one of the key prosecution witnesses would be unavailable after the first day (see generally, People v. Page, 72 N.Y.2d 69). The prosecutor's characterization of Thomas' defense that he was merely a spectator to this crime as "absurd" and "ridiculous" was permissible rhetoric which could not have inflamed the jury or encouraged it to substitute passion for evidence (see, People v. Jones, 162 A.D.2d 204).
We find no defect in the court's instructions to the jury on accessorial liability. The jury was correctly advised of the necessity of finding that Thomas had intentionally aided Glover, before the former could be convicted as an accomplice. Further, direct evidence as to Thomas' active participation, to wit, holding the subway door open while checking the platform outside, consulting with Glover immediately before the latter pulled a razor on the victim they had been harassing, and exchanging "high fives" with Glover as the two left the train together after commission of the crime, negated the possibility of "otherwise innocent behavior" which would warrant a circumstantial evidence charge (cf., People v. Cleague, 22 N.Y.2d 363).
While we do not approve of an Allen charge that reminds a jury of the time and expense involved in trying (and possibly retrying) a case, the jurors here were not coerced, since the Trial Judge took pains to neutralize any possible coercive effect by charging them not to relinquish conscientiously held opinions or positions (see, People v. Mack, 156 A.D.2d 158, lv denied 75 N.Y.2d 870). Finally, the fact that the jury deliberated for four more hours, after the Allen charge, before returning its verdict, is yet another indication of lack of coercion (People v Mack, supra).
The sentences for these violent crimes were appropriate.
Concur — Kupferman, J.P., Ellerin, Wallach, Smith and Rubin, JJ.