Opinion
May 1, 1997
Supreme Court, Bronx County (Steven Barrett, J.).
In light of the jury's continuous deliberations, requests for readbacks and instructions, and retracted announcement that it had reached a verdict, the court properly exercised its discretion in declining to declare a mistrial and, instead, delivering several Allen (Allen v. United States, 164 U.S. 492) charges ( Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 250-251; People v. Vincent, 231 A.D.2d 444, lv denied 89 N.Y.2d 931). Defendant's remaining claims relating to the court's Allen charges are unpreserved and without merit.
Since it is undisputed that Supreme Court, Bronx County, had jurisdiction over this case, defendant's conviction may not be invalidated on the basis of any alleged illegality in the assignment of a Judge of the Criminal Court to preside over defendant's trial as an acting Justice of the Supreme Court ( People ex rel. Devine v. Scully, 110 A.D.2d 733). Therefore, defendant lacks standing to raise any of his various objections, under Federal and State law, to the long-standing practice ( see, Matter of Taylor v. Sise, 33 N.Y.2d 357; People v. Burgos, 103 A.D.2d 751, lv denied 64 N.Y.2d 758), of assigning acting Justices to preside over general felony cases.
Defendant's contention concerning the court's response to a note from an individual juror is unpreserved and we decline to review it in the interest of justice ( see, People v. DeRosario, 81 N.Y.2d 801, 803; People v. Albert, 206 A.D.2d 320, affd 85 N.Y.2d 851).
Defendant was properly sentenced as a persistent violent felony offender. We perceive no abuse of sentencing discretion.
Concur — Sullivan, J.P., Milonas, Nardelli, Williams and Mazzarelli, JJ.