The Appellate Division modified the conviction but affirmed it in relevant part, two judges dissenting. People v. Graham, 48 A.D.2d 646, 368 N.Y.S.2d 518 (1st Dep't 1975). As modified, the conviction was affirmed by the New York Court of Appeals. 39 N.Y.2d 775, 385 N.Y.S.2d 31, 350 N.E.2d 408 (1976) (memorandum).
E.g. State v. Cornell, 266 N.W.2d 15 (Iowa 1978), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978) (five hours); People v. Thompson, 81 Mich. App. 348, 265 N.W.2d 632 (1978), disagreed with on other grounds, People v. Butts, 85 Mich. App. 435, 271 N.W.2d 265 (1978) (four hours); People v. Graham, 48 A.D.2d 646, 368 N.Y.S.2d 518 (1975), affirmed, 39 N.Y.2d 775, 385 N.Y.S.2d 31, 350 N.E.2d 408 (1976) (three hours). Though we decline to adopt a time lapse test, we note that the lapse here was almost two hours, indicating at least that the jury was not "dynamited" by the trial judge's remark.
( United States v Robinson, 560 F.2d 507, 517.)" (Cf. People v Martino, 56 A.D.2d 799, 800 [improper to respond to jury deadlock with speech on costs to State and insist they reach a verdict]; People v Graham, 48 A.D.2d 646 [ Allen charge approved in New York if not "coercive"].)
" Defense counsel again excepted to the court's reference to "the minority voters". Some three hours later, the jury reported that it had arrived at a verdict finding the defendant not guilty of the crime of rape in the first degree but convicting him of the crime of sexual abuse in the first degree. Defendant properly contends that the charge was coercive and unbalanced. Although it is appropriate to render a supplemental charge to a jury which reports a deadlock, such charge should not be coercive (People v Graham, 48 A.D.2d 646, affd 39 N.Y.2d 775). It may stress the importance of reaching a verdict but it may not properly direct that the jury has an obligation to do so where one or more jurors has a conscientious belief which differs from the others (People v. Ali, 65 A.D.2d 513, affd 47 N.Y.2d 920). Moreover, any instruction to attempt to reconcile their views must be addressed to all of the jurors and not to the minority, assuming there is a minority (Acunto v. Equitable Life Assur. Soc. of U.S., 270 App. Div. 386; Field v. Field, 283 App. Div. 372). The charge, as given and repeated, was plainly coercive. There was no instruction to the majority to reconcile their views with the minority.
Furthermore, the finding that appellant was guilty of robbery, first degree, was not inconsistent with dismissal of the weapons count. The evidence established that appellant had possession of the weapon at the time of the robbery, but there was not proof of possession thereafter and the unlawful possession charge was properly dismissed as a lesser inclusory crime (People v Graham, 48 A.D.2d 646, affd 39 N.Y.2d 775).
" (Emphasis supplied.) To that point the Trial Judge had given a paraphrase of what is known as the Allen charge (see Allen v United States, 164 U.S. 492, 501), which has received acceptance in the New York courts (People v Graham, 48 A.D.2d 646, affd 39 N.Y.2d 775). Had he stopped there, the charge would have passed muster despite the sentence underlined above. Unfortunately, he chose to go on, and said "I am sending you out again and I expect you to come here with a verdict."
Additionally, the court specifically charged the jury that "a juror has the right, if he believes he is right and he is unconvinced by the arguments or reasons of others, to stand by his opinion." In our view, the trial court acted properly and defendant was not deprived of a fair and impartial trial (see People v Graham, 48 A.D.2d 646, affd 39 N.Y.2d 775). Considering the record in its entirety, we are of the view that the judgment should be affirmed. Judgment affirmed. Greenblott, J.P., Sweeney, Kane, Mahoney and Main, JJ., concur.
The subsequent verdict was based upon a written question which was approved by counsel, included in the court's charge and submitted to the jury without objection. Since defendant took no exception to its propriety at trial, his objection at this stage of the proceedings is untimely (see Lech v Conny, 55 A.D.2d 828; Paul v Paul, 41 A.D.2d 560). As far as defendant's contention that the jury was improperly retained beyond the time when it had indicated disagreement, absent an indication either of coercion or threat, we find no error (People v Randall, 9 N.Y.2d 413, 425-426) nor were the court's supplementary instructions improper, since they clearly met the standards enunciated in People v Graham ( 48 A.D.2d 646, affd on mem below 39 N.Y.2d 775). Finally, with respect to the entrance of the Judge into the jury deliberation room, such conduct is generally improper unless both parties consent (Linke v Savage, 39 A.D.2d 326, 327). Here, however, both parties agreed that the Judge do so, and, after he reported to them on what had transpired no exception was taken.
Nor on these facts could he have committed the robbery without also committing the weapons offense. Possession of the weapon was merely incidental to and part of the robbery (People v Graham, 48 A.D.2d 646). Under the circumstances, the counts charging each of the offenses are "inclusory concurrent" (CPL 300.30, subd 4) and the verdict of guilty on the robbery count constituted a dismissal of the grand larceny count and the weapons count (CPL 300.40, subd 3, par [b]; People v Pyles, 44 A.D.2d 784; People v Grier, 37 N.Y.2d 847). Concur — Stevens, P.J., Markewich, Kupferman, Birns and Lane, JJ.
As stated by the majority, "to reach a verdict of guilt, the jury had to grant credibility to the victim and deny it to the defendant." The victim's testimony having been believed, the evidence of defendant's guilt is clear (People v Graham, 48 A.D.2d 646). While errors at the trial did occur, they did not prejudice defendant. Where proof of guilt, without reference to the error, is overwhelming, and there does not exist a significant probability, as contrasted with a rational possibility, that the jury would have acquitted the defendant absent the error, the error is not prejudicial (People v Crimmins, 36 N.Y.2d 230, 242). Furthermore, the failure of defendant to object to the cross-examination and the introduction of the knife into evidence, or to take exception to the charge, requires an affirmance (People v Vidal, 26 N.Y.2d 249; CPL 470.05).