Opinion
December 21, 1999
Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered November 2, 1998, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a second violent felony offender, to a term of 25 years, unanimously affirmed.
Daniel R. Wanderman for Respondent.
Cynthia Feathers for Defendant-Appellant.
NARDELLI, J.P., WILLIAMS, MAZZARELLI, WALLACH, LERNER, JJ.
The court's Allen charge was not coercive. The absence of coercion is established by the language of the charge, which, read as a whole, was clearly neutral and balanced (compare, People v. Perez, 164 A.D.2d 839, affd 77 N.Y.2d 928, with People v. Demery, 60 A.D.2d 606) and by the fact that the jury took nearly five hours to reach a verdict after the delivery of the charge (see, People v. Smalls, 237 A.D.2d 116, lv denied 89 N.Y.2d 1100).
Defendant failed to preserve his claim that he was deprived of a fair trial because a witness was mentioned in the People's opening statement but failed to testify, and because the People allegedly elicited, by implication, a hearsay declaration of the unavailable witness. The court offered to provide curative relief but directed defendant to identify the offending portions of the record. This was not done and nothing further was said on this subject. Accordingly, there was no implied denial of defendant's requests for relief, and such requests were clearly abandoned (see, People v. Cobos, 57 N.Y.2d 798, 802; People v. Pressley, 216 A.D.2d 202,lv denied 86 N.Y.2d 800). We decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find no bad faith or undue prejudice concerning the failure of the witness to testify (see, People v. De Tore, 34 N.Y.2d 199, 207, cert denied 419 U.S. 1025), and we would find that the substance of the officer's conversation with the witness was not revealed by implication. Moreover, the fact that the officer had a conversation with the witness was relevant, in context, to complete the narrative and explain police actions.
Defendant's failure to request any further relief after the court provided a curative instruction for the prosecutor's improper Biblical reference in summation has rendered his present contention unpreserved for appellate review (People v. Heide, 84 N.Y.2d 943, 944), and we decline to review it in the interest of justice. Were we to review this claim, we would find that this single comment was not so harmful as to deprive defendant of a fair trial (People v. Taylor, 162 A.D.2d 175, lv denied 76 N.Y.2d 866). The record fails to support defendant's claim that the prosecutor mischaracterized a witness's testimony.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.