Opinion
March 7, 1996
Appeal from the Supreme Court, Bronx County (Richard Price, J.).
The verdict was not against the weight of the evidence. We note that the identification testimony was particularly strong, and included evidence that the complainant had an extended opportunity to observe defendant face-to-face under good lighting conditions and had pointed out defendant to the police shortly after the crime. The complainant's description of his assailant as at least two years older than defendant, and his estimation that defendant was considerably heavier than his reported weight, may be explained readily in terms of defendant's hairstyle, his attempts to hide his face, and the bulk of his winter clothing. Further, the complainant's description of a ski mask worn by his assailant as blue-black, rather than black, merely presented an issue for consideration by the jury. Its determination, not unreasonable, will not be disturbed by this Court ( see, People v Baker, 168 A.D.2d 297, lv denied 77 N.Y.2d 903).
Defendant did not preserve his current claim that the trial court's Allen charge improperly coerced a verdict ( see, People v Jackson, 209 A.D.2d 247, 248, lv denied 85 N.Y.2d 974). In any event, the trial court appropriately exercised its discretion in delivering the Allen charge, rather than granting a mistrial, ( see, Matter of Plummer v Rothwax, 63 N.Y.2d 243, 250), since, after the indication that the jury was deadlocked, the jurors requested review of additional evidence Further, the record indicates that the jury continued deliberations for some time following delivery of the Allen charge, and sent two additional notes requesting further readback of testimony and charge material before rendering a verdict, clearly negating the contention that the Allen charge was coercive ( see, People v Diaz, 197 A.D.2d 379, 380, lv denied 82 N.Y.2d 893).
Concur — Ellerin, J.P., Rubin, Ross, Williams and Tom, JJ.