| People v Miller |
| 2014 NY Slip Op 07959 [122 AD3d 492] |
| November 18, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v James Miller, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), and Alston & Bird LLP, New York (Daniella P. Main ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November21, 2011, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him to a term of 25 years, unanimously affirmed.
The court properly exercised its discretion (see People v Steward, 17 NY3d 104, 110 [2011];People v Boulware, 29 NY2d 135, 139 [1971], cert denied 405 US 995[1972]), in precluding defendant from questioning prospective jurors during voir direregarding whether they could disregard a confession if they found it to be involuntary.The People had not yet decided whether they would introduce defendant's statements,which could be viewed as inculpatory or exculpatory, depending on defendant's choice ofdefenses. Thus, if the statements ultimately were not admitted, questioning the jurorsregarding their ability to disregard an involuntary confession would invite the jurors tospeculate as to the content of the statements and why they had not been introduced intoevidence (see People v Diaz, 258 AD2d 356 [1st Dept 1999], lv denied93 NY2d 969 [1999]).
By failing to object, or by failing to request additional relief after the court respondedto an objection by issuing a curative instruction, defendant failed to preserve any of hischallenges to the prosecutor's summation, and we decline to review them in the interestof justice. As an alternative holding, we find that the challenged remarks did not deprivedefendant of a fair trial (see People v Overlee, 236 AD2d 133 [1st Dept 1997],lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114,118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
To the extent the existing record permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant has not shown that his counsel's lack of objection during thePeople's summation fell below an objective standard of reasonableness, depriveddefendant of a fair trial or affected the outcome of the case (compare People v Cass, 18NY3d 553, 564 [2012], with People v Fisher, 18 NY3d 964 [2012]).
Defendant did not preserve his claim that, in imposing sentence, the court improperlyconsidered a charge that resulted in an acquittal (see People v Harrison, 82 NY2d693 [1993]), [*2]and we decline to review it in theinterest of justice. As an alternative holding, we find that the record fails to support thisassertion. We perceive no basis for reducing the sentence. Concur—Friedman,J.P., Acosta, Saxe, Manzanet-Daniels and Gische, JJ.