People v. Miller
| Decision Date | 16 January 2013 |
| Citation | 957 N.Y.S.2d 890,2013 N.Y. Slip Op. 00232,102 A.D.3d 813 |
| Parties | The PEOPLE, etc., respondent, v. James MILLER, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Megan Gaffney of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered April 20, 2010, convicting him of burglary in the second degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Approximately three months after he was indicted, and more than six months prior to the commencement of trial, the defendant made a pro se motion for the substitution of his assigned counsel. The record contains no evidence that the Supreme Court ever decided the motion. After the pro se motion was made, the defendant appeared in person or by video for several court conferences, and attended his pretrial suppression hearing and the trial. On no occasion did the defendant or his counsel make any mention of the outstanding pro se motion for the substitution of assigned counsel.
“[A] properly interposed constitutional claim may be deemed abandoned or waived if not pursued” ( People v. Alexander, 19 N.Y.3d 203, 211, 947 N.Y.S.2d 386, 970 N.E.2d 409 [citations omitted] ). Here, the defendant's conduct subsequent to the making of his pro se motion evinces his satisfaction with counsel and an abandonment of his unresolved constitutional application (see People v. Diallo, 88 A.D.3d 511, 511–512, 930 N.Y.S.2d 194;People v. Bigelow, 68 A.D.3d 1127, 1128, 892 N.Y.S.2d 449).
The defendant's challenge to portions of the testimony of the fingerprint expert is unpreserved for appellate review, as the defendant failed to object to the testimony ( seeCPL 470.05[2]; People v. Batista, 92 A.D.3d 793, 793, 938 N.Y.S.2d 479;People v. Chandler, 59 A.D.3d 562, 562, 872 N.Y.S.2d 283;People v. Crawford, 54 A.D.3d 961, 962, 863 N.Y.S.2d 830). We decline to review that claim in the exercise of our interest of justice jurisdiction.
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...motion evinces his satisfaction with counsel and an abandonment of his unresolved constitutional application." People v. Miller, 102 A.D.3d 813, 814, 957 N.Y.S.2d 890 (2d Dep't) (citations and internal quotation marks omitted), leave to app. denied, 21 N.Y.3d 1017, 971 N.Y.S.2d 500 (2013). ......
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...his request for the assignment of new counsel (see People v. Lewicki, 118 A.D.3d 1328, 1328–1329, 987 N.Y.S.2d 755 ; People v. Miller, 102 A.D.3d 813, 814, 957 N.Y.S.2d 890 ; People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803 ). Approximately five months after filing his motion for th......
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...10 N.Y.3d 136, 855 N.Y.S.2d 20, 884 N.E.2d 1019 ) was previously raised upon the defendant's direct appeal (see People v. Miller, 102 A.D.3d 813, 814, 957 N.Y.S.2d 890 ), where this Court found the contention to be unpreserved and determined, upon reviewing the record, that the case did not......