Opinion
April 20, 1992
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
The defendant asserts that a portion of the charge in the nature of a predeliberation Allen instruction (see, Allen v United States, 164 U.S. 492) was unduly coercive, resulting in a deprivation of his right to a fair trial (see, People v Ali, 47 N.Y.2d 920). However, since the defendant failed to object to the charge as given on this ground, his claim is unpreserved for appellate review as a matter of law (see, CPL 470.05; People v Thomas, 50 N.Y.2d 467; People v Scotto, 177 A.D.2d 668). In any event, the court's predeliberation instruction did not deprive the defendant of a fair trial. The court stressed the importance of rendering a verdict which was founded on each individual juror's rational and independent assessment of the evidence and effectively conveyed the message that the emphasis throughout the proceeding should be on reason rather than emotion (see, People v McGee, 76 N.Y.2d 764; People v Crawford, 158 A.D.2d 706; People v Innocent, 150 A.D.2d 608, 609).
The defendant failed to preserve for appellate review his claim that the court erroneously defined reasonable doubt in its charge to the jury (see, CPL 470.05; People v Thomas, supra; People v Scotto, supra). In any event, we find that the court's charge, when read as a whole, properly conveyed to the jury that a reasonable doubt is to be distinguished from a doubt based on a whim, sympathy, or some other vague reason (see, People v Jones, 27 N.Y.2d 222, 227; People v Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847; People v Phelps, 168 A.D.2d 693; People v Kuey, 155 A.D.2d 481).
We find that the sentence imposed was not excessive (People v Suitte, 90 A.D.2d 80). Mangano, P.J., Miller, O'Brien and Santucci, JJ., concur.