Opinion
February 27, 1995
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
We agree with the defendant's contention that the court's Allen charge (see, Allen v. United States, 164 U.S. 492) was coercive. After deliberating for two days, the jury advised the court that "one of the jurors has decided not to deliberate any further and we are at a deadlock". The court then delivered an Allen charge which focused on the "trauma and the emotional difficulties for * * * the defendant * * * and for the witnesses if we have to go through all of this again and also because of the expense and the time involved to the State and to the court system". Defense counsel objected to the Allen charge on the ground that it was coercive.
While it was proper for the trial court to ask the jury to make another effort to reach a verdict (see, People v. Pagan, 45 N.Y.2d 725), it failed to deliver a balanced instruction stressing the jurors' duty to impartially consider the evidence and try to reach an agreement without surrendering their individual views (see, People v. Ali, 47 N.Y.2d 920; see also, People v. Johnson, 193 A.D.2d 695). It was inappropriate to emphasize the expense of a retrial (see, People v. Johnson, supra). It was additionally inappropriate to emphasize the "trauma" the defendant and the witnesses would suffer from a retrial. While the court advised the jurors that it was "not directing anyone to give up a conscientiously held view", this single admonition was insufficient to neutralize the overall coercive effect of the charge.
In view of our determination that the defendant is entitled to a new trial, we do not reach his remaining contentions. Sullivan, J.P., Rosenblatt, Copertino and Hart, JJ., concur.