| People v Miller |
| 2012 NY Slip Op 04549 [96 AD3d 1451] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v VincentMiller, Appellant. |
—[*1] Vincent Miller, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July27, 2010. The judgment convicted defendant, upon a jury verdict, of promoting prisoncontraband in the first 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 ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]). Defendant failedto preserve for our review his challenge to the legal sufficiency of the evidence by his generalmotion for a trial order of dismissal at the close of the People's case (see People v Gray,86 NY2d 10, 19 [1995]). Even assuming, arguendo, that he made a specific objection at thattime, we note that he failed to renew his motion after presenting evidence and thus failed topreserve his challenge for that reason as well (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, the evidence is legally sufficientto support the conviction inasmuch as the People established that defendant, who wasincarcerated, 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 acorrection officer, inasmuch as he failed to raise a specific objection to that testimony at trial(see CPL 470.05 [2]; People vHuebert, 30 AD3d 1018, 1018 [2006], lv denied 7 NY3d 813 [2006]). Wenevertheless conclude that County Court did not err in admitting that testimony inasmuch as thecorrection officer testified based upon personal knowledge and did not offer any opinionconcerning ultimate factual issues that were "more properly within the province of the jury"(People v Rivera, 212 AD2d 1040, 1041 [1995], lv denied 85 NY2d 979 [1995];see generally People v Truscio, 251 AD2d 966, 967 [1998], lv denied 92 NY2d986 [1998]). There also is no merit to defendant's contention that the court erred in precludingevidence of defendant's prior prison disciplinary hearing inasmuch as such evidence wasirrelevant and may merely have confused the jurors (see People v Venditto, 171 AD2d952, 953-954 [1991], lv denied 78 NY2d 1130 [1991]). The sentence is not unduly harshor severe.[*2]
Contrary to defendant's contention in his pro sesupplemental brief, he was not deprived of effective assistance of counsel based on the failure ofdefense counsel to move to dismiss the indictment on the ground that defendant was deprived ofhis right to appear before the grand jury pursuant to CPL 190.50 (5) (c). Indeed, the recordestablishes that defendant was transported to the grand jury proceeding and that, after beingprovided with the opportunity to consult with defense counsel, defendant elected not to testify.Furthermore, we conclude that defense counsel's preparation for trial was more than adequate,and we reject defendant's contention that he did not receive meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). We have reviewed defendant'sremaining contentions in his main and pro se supplemental brief and conclude that they arewithout merit. Present—Scudder, P.J., Centra, Peradotto, Carni and Lindley, JJ.