| People v Miller |
| 2013 NY Slip Op 03943 [107 AD3d 406] |
| June 4, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Oscar Miller, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), renderedAugust 6, 2001, convicting defendant, after a jury trial, of assault in the first degree,criminal sale of marijuana in the fourth degree and criminal possession of marijuana inthe fourth degree, and sentencing him to an aggregate term of 12 years, unanimouslyaffirmed.
Defendant's legal sufficiency claim, including his related claim concerning the court'scharge on depraved indifference, is unpreserved, and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]).
Defendant concedes that his conduct was reckless but contends that the evidence wasinsufficient to establish that he possessed the requisite depraved indifference to humanlife necessary to sustain his first-degree assault conviction (Penal Law § 120.10[3]). Since the court charged the jury in accordance with the law of depraved indifferencein effect at the time of defendant's trial in 2001 (see People v Register, 60 NY2d270 [1983], cert denied 466 US 953 [1984]), and since defendant failed to objectto the charge or specifically challenge the sufficiency of the proof regarding the depravedindifference element in moving to dismiss the indictment, the law as reflected in the jurycharge "became the standard by which both the sufficiency . . . and theweight . . . of the evidence are measured" (People v Ortega, 47 AD3d485, 485 [1st Dept 2008], lv denied 10 NY3d 842 [2008]). In any event,whether we analyze this case under the Register standard or under the currentstandard set forth in People vFeingold (7 NY3d 288, 296 [2006]), we reach the same result.
While attempting to evade capture by the police, defendant drove at high speeds,swerved dangerously in and out of traffic, disregarded traffic signals, drove the wrongway down a one-way street in a residential section and repeatedly rammed his vehicleinto a police vehicle. Furthermore, when defendant's path was blocked by oncomingtraffic, he drove onto a sidewalk crowded with pedestrians, paused, and then rapidlyaccelerated his vehicle directly towards the victim, who was walking his dog on thesidewalk approximately 30 feet away. Even after defendant struck the victim, causinghim to fly onto the hood of defendant's vehicle, defendant continued to accelerate andonly stopped when he crashed into a parked car, at which point defendant got out of hiscar and fled, almost colliding with the seriously injured victim. Based [*2]on this evidence, the jury could have reasonably determinedthat defendant acted with "utter disregard for the value of human life" without "car[ing]whether grievous harm results or not" (Feingold, 7 NY3d at 296; see also People v Yeong SookShin, 61 AD3d 568 [1st Dept 2009], lv denied 12 NY3d 930 [2009]).
Defendant's main ineffective assistance of counsel claim is unreviewable on directappeal because it involves matters not reflected in, or not fully explained by, the trialrecord, particularly regarding counsel's voir dire strategy (see People v Rivera, 71NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Defendant claimsthat, given allegedly graphic testimony that the victim's dog was placed in danger duringthis incident, his attorney should have asked prospective jurors, or asked the court to askthem, about their attitudes toward dogs and whether these attitudes might affect thepanelists' impartiality. On the existing record, to the extent it permits review, we find thatdefendant received effective assistance under the state and federal standards (see People v Taylor, 1 NY3d174, 175-176 [2003]; People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). Counsel could havereasonably concluded that it was unwise to overemphasize the role of the dog in the case.In any event, defendant has not shown that he was prejudiced by the absence of voir direconcerning dogs. The presence of the dog was incidental, and defendant's contention thatdog ownership was the type of factor that would affect a juror's ability to be impartial isspeculative. To the extent defendant is also making an ineffective assistance claimregarding the depraved indifference issue, we find it to be without merit.
Defendant did not preserve his challenges to portions of the victim's testimony, andwe decline to review them in the interest of justice. As an alternative holding, we find nobasis for reversal. In several instances, the court struck the testimony at issue, and thejury is presumed to have followed the court's instruction to disregard anything strickenfrom the record (see People vBaker, 14 NY3d 266, 273-274 [2010]). To the extent that the remainingtestimony challenged by defendant on appeal would be inadmissible, defendant openedthe door to such testimony (seePeople v Marte, 99 AD3d 432 [1st Dept 2012], lv denied 20 NY3d 987[2012]), and any potential prejudice was likewise alleviated by the court's instructions.
We have considered and rejected defendant's claims regarding the sentencingproceeding, including those relating to the loss of the minutes of defendant's in absentiasentencing. The loss of minutes is attributable to defendant's nearly nine years spent as afugitive and concomitant delay in perfecting his appeal. We perceive no basis forreducing the sentence. Concur—Acosta, J.P., Saxe, Moskowitz, Freedman andManzanet-Daniels, JJ.