| People v Miller |
| 2014 NY Slip Op 08150 [122 AD3d 1369] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam J. Miller, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
William J. Miller, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered March 13, 2009. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts) and attempted robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of murder in the second degree (Penal Law § 125.25[1], [3]) and one count of attempted robbery in the first degree(§§ 110.00, 160.15 [2]) in connection with the shooting death of hissister's boyfriend. Defendant failed to preserve for our review his contention that theevidence is legally insufficient to support the conviction on the element of intent (see People v Tolliver, 93AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]; see generallyPeople v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is withoutmerit. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence established thatdefendant sought the assistance of his girlfriend's brother to obtain a gun and/or locate aperson who was willing to kill the victim; he stated several times during the day of themurder that he was going to "get" the victim; and he directed his sister to contact thevictim to come to her house, where the victim was shot by a codefendant in defendant'spresence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at495).
We reject defendant's contention in his main brief that he was denied effectiveassistance of counsel based both on defense counsel's failure to exercise a for-cause orperemptory challenge with respect to a prospective juror (see People v Simmons, 119AD3d 1343, 1344 [2014]; see generally People v Barboni, 21 NY3d 393, 407 [2013]),and on defense counsel's failure to call defendant's sister as a witness after he wasadvised that she would exercise her Fifth Amendment right to remain silent (seegenerally People v Thomas, 51 NY2d 466, 472-473 [1980]). We likewise rejectdefendant's contention in his pro se supplemental brief that he was denied effectiveassistance of counsel based on defense counsel's failure to request a charge onintoxication, in view of the testimony of a prosecution witness that defendant wasintoxicated. Even assuming, arguendo, that the charge was warranted (see People v Sirico, 17 NY3d744, 745 [2011]), we conclude that defendant failed to show the absence of astrategic explanation for the failure of defense counsel to request the charge (see People v Anderson, 120AD3d 1549, 1549 [2014]; see generally People v Caban, 5 NY3d 143, 152 [2005]).Indeed, the record establishes that defense counsel's strategy was to attack the credibilityof the prosecution witness rather than to advance a theory that defendant's intoxicationnegated an element of the respective crimes (see Penal Law§ 15.25). Defendant's remaining allegations of ineffective assistance ofcounsel contained in his [*2]main and pro sesupplemental briefs also are without merit, and we conclude that defendant receivedmeaningful assistance of counsel (see generally People v Baldi, 54 NY2d 137,147 [1981]).We reject defendant's contention in his main brief that Supreme Court erred indenying his pro se motion seeking new counsel to represent him on his pro se CPL330.30 motion to set aside the verdict on the grounds of juror misconduct and ineffectiveassistance of counsel, and for sentencing. Defense counsel did not take a position adverseto defendant and, indeed, supported the allegations of juror misconduct contained in thepro se motion (see People v Jones, 261 AD2d 920, 920 [1999], lv denied93 NY2d 972 [1999]; cf.People v Simon, 71 AD3d 1574, 1576 [2010], lv denied 15 NY3d 757[2010], reconsideration denied 15 NY3d 856 [2010]). In any event, we note thatthe court decided defendant's motion without consideration of defense counsel'scomments (see Simon, 71 AD3d at 1576). Finally, the sentence is not undulyharsh or severe. Present—Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph,JJ.