People v. Boykin — 14 A.D.3d 576

Majority

p. 576

The People of the State of New York, Respondent, v Jermaine Boykin, Appellant.

[787 NYS2d 662]

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered September 7, 2003, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the County Court’s supplemental Allen charge (see Allen v United States, 164 US 492 [1896]) was coercive, imbalanced, and impermissibly shifted the burden of proof to him by requiring jurors to provide an explanation for their respective positions. However, considered as a whole, the

p. 577

charge was not coercive and struck a fair balance between encouraging jurors to attempt to reach a unanimous verdict and not to abandon their conscientiously-held beliefs (see People v Jolly, 282 AD2d 474 , 475 [2001]; People v Davis, 259 AD2d 627 , 627-628 [1999]; People v Kendrick, 256 AD2d 420 , 421 [1998]; People v McGriff, 254 AD2d 503 , 504 [1998]; cf. People v Aponte, 2 NY3d 304 [2004]).

Further, the charge did not impermissibly shift the burden of proof to the defendant by requiring jurors to provide an explanation for their respective positions (cf. People v Antommarchi, 80 NY2d 247 , 252-253 [1992]; People v Henry, 283 AD2d 587 , 588 [2001]; People v Diaz, 245 AD2d 526 , 527 [1997]). Schmidt, J.P., Adams, Cozier and S. Miller, JJ., concur.

Cases cited

Allen v. United States 164 US 492 SCOTUS 1896-12-07 p. 576
People v. Davis 259 AD2d 627 N.Y. App. Div. 1999-03-15 at 627-628 p. 577
People v. Kendrick 256 AD2d 420 N.Y. App. Div. 1998-12-14 at 421 p. 577
People v. Antommarchi 80 NY2d 247 N.Y. 1992-10-27 at 252-253 p. 577