Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Miles S. MITCHELL, Defendant–Appellant.
Shirley A. Gorman, Brockport, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan Of Counsel), for Respondent.
Shirley A. Gorman, Brockport, for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan Of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him following a jury trial of, inter alia, 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[4] ). Defendant is convicted of acting in concert with two others in the shooting death of the victim, a man the assailants mistakenly believed was having a relationship with the mother of defendant's children. Viewing the evidence in light of the elements of the crime of intentional murder as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's contention, Supreme Court's Molineux determination does not constitute reversible error. The evidence that, two weeks before the crimes herein were committed, defendant struck the mother of his children and beat a man who was in a car with her was relevant with respect to his motive and intent to harm a person because of his jealousy and anger (see People v. Willsey, 148 A.D.2d 764, 765, 538 N.Y.S.2d 342, lv. denied 74 N.Y.2d 749, 545 N.Y.S.2d 124, 543 N.E.2d 767 ). We conclude that the prejudicial effect of that testimony did not outweigh its probative value, and that “ ‘any prejudice to defendant was minimized by [the court's] limiting instructions' ” (People v. Carson, 4 A.D.3d 805, 806, 771 N.Y.S.2d 775, lv. denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 ). Defendant failed to object when the court permitted a witness, the intended victim, to testify that he had received a telephone call from a person he did not know and thus his contention that the court committed reversible error by admitting that testimony is not preserved for our review (see CPL 470.15[6][a] ). In any event, we conclude that any error is harmless because the evidence of defendant's guilt is overwhelming, and there is no significant probability that he would have been acquitted in the absence of that testimony (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
We reject defendant's contention that the court erred in denying his challenges for cause with respect to three prospective jurors. With respect to the first prospective juror, the court complied with its obligation to elicit an unequivocal assurance from that prospective juror that he would not draw a negative inference if defendant did not testify (see People v. Williams, 128 A.D.3d 1522, 1523, 8 N.Y.S.3d 838, lv. denied 25 N.Y.3d 1209, 16 N.Y.S.3d 531, 37 N.E.3d 1174 ; People v. Fowler–Graham, 124 A.D.3d 1403, 1403–1404, 999 N.Y.S.2d 663, lv. denied 25 N.Y.3d 1072, 12 N.Y.S.3d 623, 34 N.E.3d 374 ; see generally People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ). The second prospective juror provided an unequivocal assurance that she understood the burdens of proof, i.e., that defendant had no burden of proof, in response to defense counsel's questions (see People v. Parker, 304 A.D.2d 146, 154, 755 N.Y.S.2d 521, lv. denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488 ; cf. People v. Casillas, 134 A.D.3d 1394, 1395–1396, 22 N.Y.S.3d 268 ). Finally, the third prospective juror informed the court that his father had been convicted of a sex offense, but he “ ‘never expressed any doubt concerning [his] ability to be fair and impartial’ ” (People v. Roseboro, 124 A.D.3d 1374, 1375, 1 N.Y.S.3d 684, lv. denied 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 ). Furthermore, his “responses were unequivocal despite [his] use of the word ‘think’ ” (People v. Rogers, 103 A.D.3d 1150, 1152, 958 N.Y.S.2d 835, lv. denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 ).
We agree with defendant, however, that the court erred in failing to reopen the Huntley hearing at defense counsel's request with respect to recorded statements that he made to an agent of the police (see CPL 60.45[2] [b] [i], [ii] ), i.e., the mother of his children, which were the subject of a protective order until approximately two weeks before trial. Because the admission of those statements at trial cannot be deemed harmless error (see generally Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ), we hold the case, reserve decision and remit the matter to Supreme Court to reopen the Huntley hearing with respect to those recorded statements (see People v. Stroman, 280 A.D.2d 887, 887, 720 N.Y.S.2d 434 ).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings.