PEOPLE, res, v. FRANK SPALLONE, def-ap

4097. PEOPLE, res, v. FRANK SPALLONE, def-ap — Mahler & Harris, P.C., Kew Gardens (Stephen R. Mahler of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for res — Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 19, 2016, convicting defendant, after a jury trial, of identity theft in the first degree, criminal possession of a forged instrument in the second degree and criminal possession of forgery devices, and sentencing him to concurrent terms of two to six years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to concurrent terms of six months, concurrent with five years' probation, and otherwise affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

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4097. PEOPLE, res, v. FRANK SPALLONE, def-ap — Mahler & Harris, P.C., Kew Gardens (Stephen R. Mahler of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for res — Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 19, 2016, convicting defendant, after a jury trial, of identity theft in the first degree, criminal possession of a forged instrument in the second degree and criminal possession of forgery devices, and sentencing him to concurrent terms of two to six years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to concurrent terms of six months, concurrent with five years’ probation, and otherwise affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

We find that the court’s reference to the prospect of a retrial in the event that the jury did not reach a verdict was not coercive under the circumstances (see e.g. People v. Strother, 30 AD3d 346, 346 [1st Dept 2006], lv denied 7 NY3d 818 [2006]). While the court’s brief comment that it would be “upsetting” if such a diverse jury could not reach a verdict was improvident, the court nevertheless reminded the jury several times to decide the case based on the evidence, and that it was not asking any juror to violate his or her conscience, or abandon his or her best judgment.

PEOPLE, res, v. FRANK SPALLONE, def-ap

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