Opinion
2000-06699.
July 11, 2005.
Application by the appellant for a writ of error coram nobis to vacate a decision and order of this Court dated June 30, 2003 ( People v. Manino, 306 AD2d 542), affirming a judgment of the Supreme Court, Queens County, rendered June 29, 2000, on the ground of ineffective assistance of appellate counsel. By decision and order on motion of this Court dated June 14, 2004, the appellant was granted leave to serve and file a brief on the issue of whether the Supreme Court improperly denied his motion for a mistrial in connection with an Allen charge ( see Allen v. United States, 164 US 492), and the coram nobis application was held in abeyance in the interim. The parties have now filed their respective briefs. Justice Santucci has been substituted for the late Justice Altman ( see 22 NYCRR 670.1 [c]).
Laura R. Johnson, New York, N.Y. (Allen Fallek of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jill A. Gross-Marks, and Donna Aldea of counsel), for respondent.
Before: Prudenti, P.J., Adams, Santucci and Smith, JJ., concur.
Ordered that the application is denied.
The appellant failed to establish that he was denied the effective assistance of appellate counsel on the ground that appellate counsel failed to address the issue of whether the Supreme Court properly denied the defendant's motion for a mistrial after the jury indicated that it was deadlocked and, instead, delivered its third Allen charge. The record indicates that the Supreme Court providently exercised its discretion ( see People v. Cortez, 242 AD2d 338). Moreover, the defendant did not object to the charge as given and thus failed to preserve for appellate review any claim as to the language of the charge ( see People v. Baher, 308 AD2d 365). In any event, the charge was not coercive ( see People v. Battle, 15 AD3d 413, 413-414; People v. Baher, supra).