June 13, 2013
The People of the State of New York, Respondent,
Fitzhugh Campbell, Defendant-Appellant.
Richard M. Greenberg, Office of The Appellate Defender, New York (Joseph M. Nursey of counsel), and Richards Kibbe & Orbe LLP, New York (Paul J. Devlin of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Acosta, J.P., Renwick, Richter, Feinman, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered May 18, 2010, convicting defendant, after a jury trial, of three counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 41 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences on all counts run concurrently, resulting in a new aggregate term of 25 years to life, and otherwise affirmed.
The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion when it inquired whether the jury, which had been deliberating for several days, had agreed upon a verdict as to any of the counts submitted, and then accepted a partial verdict (see e.g. People v Brown, 1 A.D.3d 147 [1st Dept 2003], lv denied 1 N.Y.3d 625 ; People v Mendez, 221 A.D.2d 162, 163 [1st Dept 1995], lv denied 87 N.Y.2d 923 ). In accordance with CPL 310.70(1)(b), the court properly instructed the jury to resume deliberations on the remaining counts. The court's actions did not coerce a verdict as to any counts (see People v Hall, 105 A.D.3d 658 [1st Dept 2013]), and defendant has not shown how he was prejudiced by any of these actions.
The court responded meaningfully when, on the day after the partial verdict, the jurors sent a note stating, "If we are unable to come to an agreement on the remaining charges, we request instruction." Even if the court's response could be characterized as an abbreviated Allen charge (see Allen v United States, 164 U.S. 492 ), and even though the jury had not expressly stated that it was deadlocked, the response met the standard of meaningfulness (see People v Malloy, 55 N.Y.2d 296, 302 , cert denied 459 U.S. 847 ), particularly since the jury was in its fourth day of deliberations following a relatively short trial. The court's brief, balanced instruction properly encouraged the jurors to continue their deliberations in an attempt to reach a verdict, it contained no coercive language, and it twice cautioned the jurors not to abandon their positions. Moreover, rather than reaching an immediate verdict (compare People v Aponte, 2 N.Y.3d 304, 309 ), the jury deliberated for four more hours and ultimately returned both convictions and acquittals on various counts.
The trial court properly exercised its discretion (see generally People v Duncan, 46 N.Y.2d 74, 80 , cert denied 442 U.S. 910 ) in denying defendant's request to introduce extrinsic evidence of an alleged prior inconsistent statement by a detective, since "the purported inconsistency rests on a slender semantic basis and lacks probative value" (People v Jackson, 29 A.D.3d 400 [1st Dept 2006], lv denied 7 N.Y.3d 790 ). The detective's answers on cross-examination sufficiently resolved the purported inconsistency, and defendant has not shown that he was prejudiced by being unable to introduce extrinsic evidence. Defendant's argument that the People were obligated to "correct" the detective's testimony is without merit. Furthermore, the ruling at issue was not rendered unfair by the court's ruling on a completely different issue involving the People's impeachment of defendant's testimony. In any event, any error regarding the exclusion of extrinsic evidence was harmless in view of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 N.Y.2d 230 ). Finally, we note that since defendant never asserted a constitutional right to introduce the evidence at issue, his present constitutional claim is unpreserved (see People v Lane, 7 N.Y.3d 888, 889 ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see Crane v Kentucky, 476 U.S. 683, 689-690 ; Delaware v Van Arsdall, 475 U.S. 673, 678-679 ).
The court also properly exercised its discretion in admitting into evidence two recorded telephone calls made by defendant, which contained relevant evidence despite the presence of offensive content. The court properly concluded that the probative value of this evidence outweighed any prejudicial effect. Moreover, the court offered to minimize any prejudice by delivering a limiting instruction, but defendant declined that offer. In any event, any error was harmless.
We find the sentence excessive to the extent indicated.