Opinion
2014-01-14
The PEOPLE of the State of New York, Respondent, v. Lavonte THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered September 30, 2011, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of four years, unanimously affirmed.
The verdict was not against the weight of the evidence. Defendant's accomplice liability could reasonably be inferred from the chain of events ( see People v. Cabey, 85 N.Y.2d 417, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ), which supports the inference that defendant intentionally took part in the robbery by leading the victim, a pizza deliveryman, into a trap. Defendant's conduct and that of the other participant in the crime “made little sense unless defendant was a participant and not a spectator” (People v. Marte, 7 A.D.3d 405, 406, 777 N.Y.S.2d 448 [1st Dept. 2004], lv. denied3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ).
The court's response to the deliberating jury's deadlock note was “simply encouraging rather than coercive” (People v. Ford, 78 N.Y.2d 878, 880, 573 N.Y.S.2d 442, 577 N.E.2d 1034 [1991] ). Rather than giving a full Allen charge ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896] ), the court merely asked the jury, which had been deliberating for only three hours, to keep trying to reach a verdict if possible. There was no language that can be viewed as coercive, or disparaging of the jury's failure to reach a verdict. Accordingly, the absence of language instructing the jurors to maintain their conscientiously held beliefs does not require reversal.
Defendant's argument that the prosecutor “impeached” her own witness during summation is without merit. The prosecutor was entitled to make record-based arguments to explain a discrepancy between the respective recollections of the victim and a detective. Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv. denied91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv. denied81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).