People v. Miller

• Decision Date: 08 June 2012
• Citation: 2012 N.Y. Slip Op. 04549,96 A.D.3d 1451,946 N.Y.S.2d 742
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent MILLER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1451

946 N.Y.S.2d 742

2012 N.Y. Slip Op. 04549

The PEOPLE of the State of New York, Respondent,

v.Vincent MILLER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

Donald R. Gerace, Utica, for Defendant–Appellant.

Vincent Miller, Defendant–Appellant Pro Se.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence by his general motion for a trial order of dismissal at the close of the People's case ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Even assuming, arguendo, that he made a specific objection at that time, we note that he failed to renew his motion after presenting evidence and thus failed to preserve his challenge for that reason as well ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, the evidence is legally sufficient to support the conviction inasmuch as the People established that defendant, who was incarcerated, knowingly possessed “dangerous contraband” in violation of Penal Law § 205.25(2).

Defendant likewise failed to preserve for our review his challenge to the testimony of a correction officer, inasmuch as he failed to raise a specific objection to that testimony at trial ( seeCPL 470.05[2]; People v. Huebert, 30 A.D.3d 1018, 1018, 815 N.Y.S.2d 851,lv. denied7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804). We nevertheless conclude that County Court did not err in admitting that testimony inasmuch as the correction officer testified based upon personal knowledge and did not offer any opinion concerning ultimate factual issues that were “more properly within the province of the jury” ( People v. Rivera, 212 A.D.2d 1040, 1041, 623 N.Y.S.2d 445,lv. denied85 N.Y.2d 979, 629 N.Y.S.2d 739, 653 N.E.2d 635;see generally People v. Truscio, 251 A.D.2d 966, 967, 674 N.Y.S.2d 558,lv. denied92 N.Y.2d 986, 683 N.Y.S.2d 767, 706 N.E.2d 755). There also is no merit to defendant's contention that the court erred in precluding evidence of defendant's prior prison disciplinary hearing inasmuch as such evidence was irrelevant and may merely have confused the jurors ( see People v. Venditto, 171 A.D.2d 952, 953–954, 567 N.Y.S.2d 897,lv. denied78 N.Y.2d 1130, 578 N.Y.S.2d 888, 586 N.E.2d 71). The sentence is not unduly harsh or severe.

Contrary to defendant's contention in his pro se supplemental brief, he was not deprived of effective assistance of counsel based on the failure of defense counsel to move to dismiss the indictment on the ground that defendant was deprived of his right to appear before the grand jury pursuant to CPL 190.50(5)(c). Indeed, the record establishes that defendant was...