| People v Miller |
| 2014 NY Slip Op 04968 [119 AD3d 613] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Quanel Miller, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau and De Nice Powell ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County(Goldberg, J.), rendered March 9, 2011, and (2) an amended judgment of the same courtrendered June 2, 2011, convicting him of rape in the first degree (two counts), burglaryin the first degree (two counts), and robbery in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the appeal from the judgment rendered March 9, 2011, is dismissed, asthat judgment was superseded by the amended judgment rendered June 2, 2011; and it isfurther,
Ordered that the amended judgment is modified, on the law, by vacating the sentenceimposed; as so modified, the amended judgment is affirmed, and the matter is remitted tothe Supreme Court, Kings County, for resentencing in accordance herewith.
The defendant was found guilty of various rape, burglary, and robbery chargesstemming from an attack on a female victim in January 2003, and an attack on a secondfemale victim in 2006. To support a conviction of burglary in the first degree, the Peopleare obligated to establish beyond a reasonable doubt that a defendant knowingly enteredor remained unlawfully in a dwelling with intent to commit a crime therein, and that, ineffecting the entry or while in the dwelling or in immediate flight therefrom, thedefendant, or another participant in the crime, caused "physical injury" to a person whowas not a participant in the crime (Penal Law § 140.30 [2]), or engaged inother conduct not relevant here. The defendant challenges the legal sufficiency of theevidence supporting his conviction of burglary in the first degree with respect to the2003 incident, arguing that the People did not provide adequate proof that the victim ofthat incident suffered a "physical injury," as that term is defined in Penal Law§ 10.00 (9). The defendant failed to preserve that argument for appellatereview. In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt of this crime beyond a reasonable doubt. The Peoplepresented sufficient evidence that the victim of the 2003 attack suffered substantial painand, thus, established the element of physical injury beyond a reasonable doubt (see People v Chiddick, 8 NY3d445, 447 [2007]; [*2]People v Sullivan, 64 AD3d 67 [2009]; People v Gill, 54 AD3d965 [2008]). Moreover, upon exercising our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt with respect to the crime of burglaryin the first degree was not against the weight of the evidence (see People v Danielson, 9NY3d 342 [2007]; People vRomero, 7 NY3d 633 [2006]).
The defendant contends that the testimony of a detective violated the principlesenunciated in People v Trowbridge (305 NY 471 [1953]) by bolstering theidentification testimony of the victim of the 2006 incident, and implying that the victimof the 2003 incident also had identified the defendant. This contention is unpreserved forappellate review and, in any event, without merit. The detective's testimony did not referto either victim's identification of the defendant (see People v Martinez, 298AD2d 897 [2002]; People v Smith, 265 AD2d 352, 352 [1999]).
The defendant's contentions regarding certain remarks made by the prosecutor duringsummation are also unpreserved for appellant review. In any event, although theprosecutor's comments were improper and unnecessarily inflammatory, they constitutedharmless error and did not deprive the defendant of a fair trial (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Whitehurst, 70 AD3d 1057, 1058-1059[2010]).
Contrary to the defendant's contention, he did not receive ineffective assistance ofcounsel. The record indicates that, under the New York standard, defense counselprovided meaningful representation (see People v Rivera, 71 NY2d 705, 708-709[1988]; People v Baldi, 54 NY2d 137, 146-147 [1981]). Counsel also was notineffective under the federal standard, as the defendant was not prejudiced by any allegederror made by defense counsel (see Strickland v Washington, 466 US 668, 687[1984]).
Finally, the defendant challenges the propriety of the sentence. To comply with dueprocess, a sentencing court "must assure itself that the information upon which it basesthe sentence is reliable and accurate" (People v Outley, 80 NY2d 702, 712[1993]; see People v Naranjo, 89 NY2d 1047 [1997]; People v Barnes, 60 AD3d861, 863 [2009]). Here, although the sentencing court was permitted to note that thedefendant was charged with a similar offense in 2008 (see People v Nash, 83 AD3d872, 873 [2011]), it erred when it improperly assumed that the defendant chose thevictims because of their ethnicity and age. There was no evidence that the victims werespecifically targeted on those grounds, a fact that the court acknowledged. Nevertheless,the court indicated that there may have been a "hate crime" element to the crimes at issue.As the sentencing court relied upon a material assumption not supported by the record,the sentence was illegally imposed (see People v Naranjo, 89 NY2d at 1049;People v Barnes, 60 AD3d at 863-864). Accordingly, the sentence must bevacated and the matter remitted to the Supreme Court, Kings County, for resentencing, inwhich no consideration shall be given to whether the instant offenses may have had "hatecrime" elements. Eng, P.J., Austin, Hinds-Radix and LaSalle, JJ., concur.