Opinion
October 17, 1994
Appeal from the Supreme Court, Kings County (Demarest, J.).
Ordered that the judgments upon Indictment Nos. 10833/90 and 8164/91 are modified, on the law, by vacating the sentences imposed; as so modified, the judgments are affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith; and it is further,
Ordered that the amended judgment upon S.C.I. No. 2848/90 is affirmed.
The defendant's contention that the trial court's Allen charges (see, Allen v. United States, 164 U.S. 492) were coercive is unpreserved for appellate review. The defense counsel neither requested a specific charge nor objected to the charges that were given by the trial court (see, People v. Perdomo, 204 A.D.2d 128; People v. Velez, 150 A.D.2d 514). In any event, the record reveals that the supplemental instructions were neutral, that they were directed at the jurors in general, and that they did not coerce the jurors to reach a verdict or to achieve a specific result (see, People v. Odome, 192 A.D.2d 726; People v Fleury, 177 A.D.2d 504; People v. Brooks, 152 A.D.2d 591).
The defendant, relying upon People v. Sloan ( 79 N.Y.2d 386), contends that his right to be present at a material stage of his trial was violated by his absence from a sidebar conference with a juror who indicated that she might know one of the potential witnesses. However, the Court of Appeals has determined that the rule enunciated in People v. Sloan (supra) should be applied only prospectively to cases in which jury selection occurred after April 7, 1992, the date on which Sloan was decided (see, People v. Sprowal, 84 N.Y.2d 113; see also, People v. Hannigan, 193 A.D.2d 8, lv. granted 82 N.Y.2d 896). Here, jury selection occurred prior to April 7, 1992. Therefore, reversal is not required.
Finally, the People concede that the trial court did not adjudicate the defendant a second felony offender during sentencing upon Indictment Nos. 10833/90 and 8164/91. Thus, these sentences must be vacated and the matter remitted for resentencing in accordance with CPL 400.21 (see, People v Leacock, 196 A.D.2d 663; People v. Bressingham, 148 A.D.2d 463). Thompson, J.P., Sullivan, Friedmann and Krausman, JJ., concur.