| People v Miller |
| 2014 NY Slip Op 04267 [118 AD3d 1127] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDarrin Miller, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedMay 3, 2012 in Albany County, upon verdicts convicting defendant of the crimes ofattempted murder in the second degree, criminal use of a firearm in the first degree andcriminal possession of a weapon in the second degree.
In September 2010, as patrons were leaving a nightclub in the City of Albany ataround 4:00 a.m., defendant was observed by two members of the nightclub's securitystaff firing multiple shots from a handgun at a vehicle as it sped out of the parking lot.Defendant was later charged in a multicount indictment and a jury found him guilty ofcriminal possession of a weapon in the second degree, but the jury was deadlocked onseveral counts. A second trial on the counts where the first jury had been unable to reacha verdict resulted in defendant being convicted of attempted murder in the second degreeand criminal use of a firearm in the first degree. He was sentenced, as a second violentfelony offender, to concurrent prison terms with an aggregate maximum of 19 years pluspostrelease supervision. Defendant appeals.
Defendant argues that his convictions in the second trial for attempted murder andcriminal use of a firearm (counts 1 and 2 of the indictment) were not supported by legallysufficient evidence and were against the weight of the evidence. The focus of hisargument is that firing shots at a retreating vehicle was insufficient to establish theelement of intent to cause the death of another. "[I]ntent can . . . be inferredfrom the defendant's conduct and the [*2]surroundingcircumstances and indeed this may be the only way of proving intent in the typical caseof criminal attempt" (People v Bracey, 41 NY2d 296, 301 [1977] [internalquotation marks and citations omitted]; see People v Callicut, 101 AD3d 1256, 1258 [2012], lvdenied 20 NY3d 1096 [2013]). Testimony at trial included two of the nightclub'ssecurity staff as well as several City of Albany police officers, who were on hand becauseof possible crowd control issues when the show at the nightclub ended at 4:00 a.m. Thesecurity staff were escorting two unruly patrons off the premises when they were notifiedof a problem in the back parking lot. As they headed to the back lot, they heard twoshots. The security staff then saw a black car speeding away and a man—lateridentified as defendant—firing four to six shots at the car. The car came within anestimated five feet of defendant and he ran after the car continuing to shoot at it.Although the police officers at the scene were not in a location to see the shooting, theywere provided a description of the shooter by security staff and the officers quicklyapprehended defendant, as well as later finding the handgun and other evidence.
After receiving Miranda warnings, defendant agreed to talk with police, andthat interview was recorded and received into evidence at trial. Defendant claimed that afriend of his was being attacked outside the nightclub and that he went to assist hisfriend, including wrestling a gun from one individual. He stated that shots were fired athim by a person who left the fight and got into the car. Defendant, who testified at bothtrials, acknowledged shooting at the car, but claimed he was only trying to scare the caraway. There was also evidence that one of the individuals that defendant thought was inthe car was someone that defendant believed had shot his brother a few weeksearlier.
Viewed most favorably to the People, the evidence established that defendantrepeatedly fired a .45 caliber semiautomatic handgun at the car from a distance as closeas five feet. He believed that an occupant of the car had recently shot his brother. Hiscontention that he was merely attempting to scare off the car created a credibility issuefor the jury and was undermined by the fact that he ran after the car continuing to fire atit as it left the scene. The proof was legally sufficient to support the jury's verdict (seePeople v Malik'El, 234 AD2d 566, 566 [1996], lv denied 89 NY2d 987[1997]; People v Torres, 149 AD2d 747, 748 [1989], lv denied 74 NY2d748 [1989]). Moreover, after viewing the evidence in a neutral light, while accordingdeference to the jury's credibility determinations, we are unpersuaded that the verdict wasagainst the weight of the evidence (see People v Collazo, 45 AD3d 899, 900-901 [2007], lvdenied 9 NY3d 1032 [2008]; People v Adams, 8 AD3d 685, 686 [2004], lvdenied 3 NY3d 669 [2004]).
Defendant next contends that, during the first trial, he was deprived of a fair trialbecause Supreme Court did not individually question all jurors after two jurors indicatedthat defendant's apparent girlfriend had made inappropriate comments. One of the jurorsheard the putative girlfriend ostensibly say the trial was "a joke" and the jurors "stupid,"and that juror told the second juror. Supreme Court "conduct[ed] a probing and tactfulinquiry into the facts of the situation" (People v Harris, 99 NY2d 202, 213 [2002][internal quotation marks omitted]), questioning each of the two jurors individually anddetermining that the ability of each to decide the case fairly had not been affected so as torender either grossly unqualified (see CPL 270.35 [1]; People v Reichel, 110 AD3d1356, 1358 [2013], lv denied 22 NY3d 1090 [2014]). The record fullysupports Supreme Court's determination. The issue of whether other jurors should havebeen questioned by the court was not preserved as defense counsel, who participated inquestioning the two jurors, made no such request. Supreme Court gave an admonishmentnot to tell anyone else about the comments and the court was not obligated under thecircumstances to question other jurors.
[*3] Supreme Court did not err in admitting at the second trial defendant's testimonyfrom the first trial. A defendant's testimony at a prior trial is generally admissible (seeHarrison v United States, 392 US 219, 222 [1968]), so long as there is a properevidentiary ground for the testimony (see e.g. People v Bowman, 77 AD3d 559, 560 [2010],lv denied 16 NY3d 828 [2011], cert denied 565 US &mdash, 132 S Ct307 [2011]; People v King, 158 AD2d 471, 471 [1990], lv denied 76NY2d 737 [1990]) and the earlier testimony was not impelled by proof later determinedto have been illegally obtained (see People v Spencer, 219 AD2d 259, 262-263[1996], lv denied 88 NY2d 1024 [1996]). The People sought to admit defendant'stestimony since it contained relevant admissions by defendant. There was no contentionthat defendant's earlier testimony was in any way the result of improper proof presentedby the People in the first trial. Defendant was primarily concerned that admitting thetestimony could reveal to the jury that a prior trial had occurred, and did not otherwiseraise specific evidentiary objections to the testimony.
The remaining arguments do not require extended discussion. Although the betterpractice is to include in the admonishments to the jury specific reference to the Internetand other electronic devices or social media (see CJI2d[NY] Jury Admonitions inPreliminary Instructions [rev May 5, 2009]), defendant did not preserve the issue bytimely objection and, in any event, Supreme Court gave admonitions nearly verbatim tothose required by the relevant statute (see CPL 270.40). Supreme Court did notcommit reversible error in making a different Sandoval ruling in the second trialthan was made at the first trial (see People v Evans, 94 NY2d 499, 500-501[2000]). The court's ruling followed proper Sandoval analysis and was within itsdiscretion (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People vWilliams, 56 NY2d 236, 238-239 [1982]). The brief reference by a police detectiveduring grand jury testimony to defendant's wish to speak to a lawyer before signingpaperwork regarding a request to take a DNA sample from him was improper and shouldhave evoked a prompt curative instruction by the People. Nonetheless, we agree withSupreme Court's determination that under the circumstances—particularly thefleeting nature of the comment and the strength of the other proof—the drasticremedy of dismissal of the indictment was not warranted (see People v Morrison, 110AD3d 1380, 1381-1382 [2013], lv denied 22 NY3d 1201 [2014]; People v Kidwell, 88 AD3d1060, 1061-1062 [2011]; People v Ramos, 48 AD3d 984, 985-986 [2008], lvdenied 10 NY3d 938 [2008], cert denied 556 US 1110 [2009]). Theremaining arguments have been considered and are unavailing.
Stein, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.