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People v. Muirhead

Supreme Court of New York, Second Department

October 9, 2013

The People of the State of New York, respondent,
v.
Sophia Muirhead, appellant. Ind. No. 4243/09

Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered June 23, 2011, convicting her of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support her conviction is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

Contrary to the People's contention, the defendant preserved for appellate review her claim that the gun recovered by a police officer was improperly admitted into evidence due to the People's failure to establish an adequate chain of custody. However, since the officer marked the gun with his initials when he vouchered it, rendering it readily identifiable, his identification at trial and testimony that it was in the same condition as when he recovered it was sufficient to warrant its admission into evidence (see People v McGee, 49 N.Y.2d 48, 59-60; People v Julian, 41 N.Y.2d 340, 343; People v Wilson, 150 A.D.2d 628, 630; People v Capers, 105 A.D.2d 842, 843).

The defendant's contention that the trial court's Allen charge (see Allen v United States, 164 U.S. 492) was improper is only partially preserved for appellate review (see CPL 470.05[2]). In any event, although the court "did not expressly instruct that each juror was entitled to maintain conscientiously held opinions, ' the charge as a whole was balanced, proper, and encouraging rather than coercive" (People v Kinard, 215 A.D.2d 591, 591; see People v Canales, 88 A.D.3d 1007, 1007-1008). The court's instructions were directed at the jurors in general, and "did not urge that a dissenting juror abandon his or her own conviction, attempt to coerce or compel the jury to reach a particular verdict, or shame the jury into reaching a verdict" (People v McKenzie, 48 A.D.3d 594, 595; see People v Canales, 88 A.D.3d at 1008; People v Gonzalez, 70 A.D.3d 855, 856).

Because the Allen charge was not improper, the defendant's ineffective assistance of counsel claim, based solely on her attorney's failure to object to a portion of that charge, is without merit (see People v McKenzie, 48 A.D.3d at 595).

BALKIN, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.


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