| People v Miller |
| 2009 NY Slip Op 01028 [59 AD3d 1124] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kyle E.Miller, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedJanuary 8, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree and robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [3]) and robbery in the second degree(§ 160.10 [1]). Contrary to the contention of defendant, "[o]n the record here, it cannot besaid as a matter of law that [County Court] erred in finding that defendant was capable ofunderstanding the immediate import of the Miranda warnings. Indeed, defendant's expertwitness[ ] testified to that effect" (People v Williams, 62 NY2d 285, 290 [1984]). Basedupon the evidence at the suppression hearing, the court properly determined that "[t]he Peoplemet 'their initial burden of establishing the legality of the police conduct and defendant's waiverof rights,' and defendant failed to establish that he did not waive those rights, or that the waiverwas not knowing, voluntary and intelligent" (People v Grady, 6 AD3d 1149, 1150 [2004], lv denied 3NY3d 641 [2004]).
The general motion by defendant for a trial order of dismissal is insufficient to preserve forour review his challenge to the legal sufficiency of the evidence (see People v Gray, 86NY2d 10, 19 [1995]) and, in any event, that challenge lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Further, viewing the evidence in light of the elementsof the crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contentions that he was deprived of a fairtrial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Smith, 32 AD3d 1291,1292 [2006], lv denied 8 NY3d 849 [2007]), and that the prosecutor improperly usurpedthe role of the court by providing the jury with legal instructions (see People v France,265 AD2d 424 [1999], lv denied 94 NY2d 823 [1999]). In any event, those contentionsare without merit. The further contention of defendant that he was denied effective assistance ofcounsel based on defense counsel's failure to challenge the impartiality of a juror concernsmatters outside the record on appeal and thus [*2]must be raisedby way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lvdenied 6 NY3d 815 [2006]). Insofar as defendant may be deemed to contend that he wasdenied effective assistance of counsel based on defense counsel's representation viewed in itsentirety, we conclude that defendant's contention lacks merit (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his present challenge to that ruling (see People v Caito, 23 AD3d 1135 [2005]; People v Rodriguez, 21 AD3d1400 [2005]). In any event, that contention lacks merit (see generally People vHayes, 97 NY2d 203, 207-208 [2002]).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Smith, J.P., Centra, Fahey,Green and Pine, JJ.