| People v Miller |
| 2009 NY Slip Op 05835 [64 AD3d 471] |
| July 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Miller, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patricia Curran of counsel), forrespondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or aboutMarch 3, 2008, which denied defendant's CPL 440.10 motion to vacate, on the ground ofineffective assistance of counsel, a judgment of the same court and Justice, rendered March 28,2001, as amended April 20, 2001, unanimously affirmed.
Although several aspects of the court's main and supplemental jury instructions were similarto language we disapproved in People vJohnson (11 AD3d 224 [2004], lv denied 4 NY3d 745 [2004]), the questionhere is not merely whether those instructions were improper, but includes whether trial counsel'sfailure to object to them—and, indeed, his specific requests for one of thoseinstructions—in and of itself establishes a claim of ineffective assistance of counsel (see People v Caban, 5 NY3d 143,152 [2005]).
We observe that, unlike the instructions given in People v Johnson, the trial courthere highlighted the difference between facts and elements, and expressly told the jury that thereasonable doubt standard was the only standard that applied to the elements of the crimescharged. Particularly given that distinction, we conclude that the presence of the disapprovedlanguage in the charge did not misstate the constitutionally required standard of proof orcompromise defendant's right to a fair trial, and that counsel's failure to object to the challengedportions did not amount to a deprivation of defendant's right to effective assistance of counsel(see People v Alvarez, 54 AD3d612 [2008], lv denied 11 NY3d 853 [2008]; People v Henderson, 50 AD3d 525, 525-526 [2008], lv denied10 NY3d 959 [2008]). Concur—Tom, J.P., Saxe, Sweeny, Acosta and Abdus-Salaam,JJ.