Opinion
Argued April 6, 2000.
July 24, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered May 19, 1998, convicting him of sodomy in the first degree, sexual abuse in the first degree, rape in the third degree, sodomy in the third degree, unlawful imprisonment in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Amy K. Schiava and Rosali Vazquez of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Florence M. Sullivan, and Brendan Fitzgerald Crowe of counsel), for respondent.
Before: DANIEL W. JOY, J.P., ANITA R. FLORIO, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the court improperly failed to poll the jury as to the seriousness of its alleged deadlock is unpreserved for appellate review (see, CPL 470.05; People v. Kendrick, 256 A.D.2d 420; People v. Marero, 208 A.D.2d 769). In any event, the court properly found that there was a reasonable possibility of ultimate agreement on the verdict (see, Plummer v. Rothwax, 63 N.Y.2d 243; People v. Woods, 262 A.D.2d 668; People v. Reed, 230 A.D.2d 866). Moreover, the Allen charge, viewed as a whole, was appropriate (see, Allen v. United States, 164 U.S. 492; People v. Hardy, 109 A.D.2d 802; People v. Ali, 65 A.D.2d 513; see also, People v. Bastien, 180 A.D.2d 691, 692).
The defendant's contention that his convictions on counts three through seven of the indictment should be reversed and those counts dismissed, because the jury disregarded the Supreme Court's instructions on the verdict sheet, is also unpreserved for appellate review (see, CPL 470.05). In any event, a claim that a verdict is repugnant or contrary to the trial court's instructions must be made before the jury is discharged (see, People v. Satloff, 56 N.Y.2d 745; see also, People v. Alfaro, 66 N.Y.2d 985). In the present case, the jury's intentions were clear and it manifested no confusion in rendering its verdict (see, People v. Robinson, 45 N.Y.2d 448; People v. McDowell, 216 A.D.2d 419). Further, the Supreme Court never gave the jury any instruction on the order of deliberation it should follow in addressing each count of the indictment. Therefore, since no objection was raised at a time when reasonable inquiry could be made, the defendant's contention cannot be considered, even in the interest of justice, because it would necessarily involve speculation as to the jury's deliberative process (see, People v. Bailey, 239 A.D.2d 286; People v. Gerard, 208 A.D.2d 421).
The defendant's remaining contentions are without merit.