From Casetext: Smarter Legal Research

People v. Bastien

Appellate Division of the Supreme Court of New York, Second Department
Feb 10, 1992
180 A.D.2d 691 (N.Y. App. Div. 1992)

Opinion

February 10, 1992

Appeal from the Supreme Court, Kings County (Hall, J.).


Ordered that the judgment is affirmed.

The defendant argues that the Trial Judge failed to instruct the jury adequately that a person who operates a motor vehicle without the consent of the owner is presumed to know that he does not have such consent (see, Penal Law § 165.05). We disagree. The court's instructions closely followed the New York Criminal Jury Instructions (see, 2 CJI[NY] PL 165.05 [1], at 971-975), and were thorough and not misleading (see, People v Rivers, 140 A.D.2d 897, 898). The Supreme Court correctly told the jury that the presumption was permissible and that "the fact that you may draw such inference does not shift to the defendant any burden of proof whatsoever" (see, People v Simmons, 32 N.Y.2d 250).

The defendant also asserts that the charge unfairly focused solely upon the proof adduced by the prosecution. This contention is not preserved for appellate review since no objection was made to the charge on this ground (see, CPL 470.05; People v McDonald, 144 A.D.2d 701, 702). In any event, the court's failure to refer to the defendant's evidence was not error. The trial was short, there were few witnesses, and the defendant's position was made clear to the jury during defense counsel's summation (see, People v. McDonald, supra, at 702). The court was not required to explain all of the parties' contentions or discuss all of the alleged inconsistencies in the evidence (see, People v Saunders, 64 N.Y.2d 665; People v. McDonald, supra, at 702).

The defendant argues that the so-called "Allen" instructions (see, Allen v. United States, 164 U.S. 492) coerced the jurors into returning a verdict after they had twice reported a deadlock. Allen instructions are proper provided they do not (1) urge that a dissenting juror abandon his or her own conviction and join in the opinion of other jurors, (2) attempt to coerce or compel the jurors to agree upon a particular verdict, or (3) shame the jurors into reaching a verdict (see, People v. Austin, 168 A.D.2d 502, 502-503; People v. Gomez, 149 A.D.2d 432, 433; People v. Hardy, 109 A.D.2d 802). In the instant case, the instructions to the jury were free of these errors. Finally, it is well established that the determination as to how long disagreeing jurors will be kept together and required to continue their deliberations is a matter of sound judicial discretion which, if not improvidently exercised, will not be disturbed (see, People v. Adams, 123 A.D.2d 355; People v. Hardy, supra, at 802). Bracken, J.P., Lawrence, Miller and Copertino, JJ., concur.


Summaries of

People v. Bastien

Appellate Division of the Supreme Court of New York, Second Department
Feb 10, 1992
180 A.D.2d 691 (N.Y. App. Div. 1992)
Case details for

People v. Bastien

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LESLY BASTIEN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 10, 1992

Citations

180 A.D.2d 691 (N.Y. App. Div. 1992)
580 N.Y.S.2d 54

Citing Cases

People v. Ramirez

We agree with our dissenting colleague that, as a general rule, a court should not deviate from the standard…

People v. Thomas

The defendant's contentions concerning the trial court's alleged failure to marshal the evidence fairly, and…