Opinion
282 KA 18-01058
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Dakota M. MILLER, Defendant-Appellant.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [4] ) and manslaughter in the first degree (§ 125.20 [4]), defendant contends that he was denied a fair trial by prosecutorial misconduct. Defendant failed to preserve for our review his contention with respect to the majority of the alleged instances of misconduct inasmuch as he did not object to any of those alleged instances (see People v. Johnson , 133 A.D.3d 1309, 1311, 19 N.Y.S.3d 646 [4th Dept. 2015], lv denied 27 N.Y.3d 1000, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; People v. Paul , 78 A.D.3d 1684, 1684-1685, 911 N.Y.S.2d 757 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ), and we decline to exercise our power to review defendant's contention with respect to those instances as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). With respect to the instances of alleged prosecutorial misconduct that are preserved for our review, we agree with defendant that the People's use of defendant's pretrial silence was improper (see generally People v. Pavone , 26 N.Y.3d 629, 639, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ; People v. Williams , 25 N.Y.3d 185, 191, 8 N.Y.S.3d 641, 31 N.E.3d 103 [2015] ), but we conclude that the error is harmless (see Pavone , 26 N.Y.3d at 643, 646, 26 N.Y.S.3d 728, 47 N.E.3d 56 ; Johnson , 133 A.D.3d at 1311-1312, 19 N.Y.S.3d 646 ).
Defendant contends that County Court erred in denying his for-cause challenges to two prospective jurors. Even assuming, arguendo, that the court erred, we conclude that the error does not require reversal because defendant had not exhausted his peremptory challenges at the time of the challenges for cause, and the People, not defendant, exercised peremptory challenges to remove those prospective jurors (see CPL 270.20 [2] ; People v. Smith , 200 A.D.3d 1689, 1690-1691, 159 N.Y.S.3d 302 [4th Dept. 2021], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 1086659 [Mar. 9, 2022] ). Contrary to defendant's further contention, the court did not abuse its discretion in refusing to allow the jurors to take notes (see People v. Egan , 6 A.D.3d 1203, 1204, 776 N.Y.S.2d 667 [4th Dept. 2004], lv denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200 [2004] ; People v. Thornton , 4 A.D.3d 561, 563, 771 N.Y.S.2d 597 [3d Dept. 2004], lv denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004] ) and allowing certain photographs in evidence (see People v. White-Span , 182 A.D.3d 909, 914, 122 N.Y.S.3d 818 [3d Dept. 2020], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 381, 152 N.E.3d 1183 [2020] ; People v. Morris , 138 A.D.3d 1408, 1409-1410, 30 N.Y.S.3d 424 [4th Dept. 2016], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ).
We reject defendant's contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contention and conclude that it is without merit.