Opinion
05-29-2024
The PEOPLE, etc., respondent, v. Christopher DEMILIO, appellant.
Steven A. Feldman, Manhasset, NY, for appellant. Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Steven A. Feldman, Manhasset, NY, for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, DEBORAH A. DOWLING, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Michael G. Hayes, J.), rendered November 12, 2021, convicting him of attempted manslaughter in the first degree (two counts), criminal possession of a weapon in the second degree, menacing in the second degree (three counts), criminal mischief in the fourth degree, and endangering the welfare of a child (two counts), upon a jury verdict, and sentencing him to consecutive determinate terms of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, on each of the convictions of attempted manslaughter in the first degree, a concurrent determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, on the conviction of criminal possession of a weapon in the second degree, and concurrent definite terms of incarceration of 364 days on each of the remaining misdemeanor convictions.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed on the convictions of attempted manslaughter in the first degree from consecutive determinate terms of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, on each count, to consecutive determinate terms of imprisonment of 9 years, to be followed by a period of postrelease supervision of 5 years, on each count; as so modified, the judgment is affirmed.
[1] The defendant’s contention that the County Court erred in failing to, sua sponte, discharge juror No. 4 because she had been intimidated and was therefore grossly unqualified to serve on the jury is unpreserved for appellate review (see CPL 470.05[2]; People v. Settles, 28 A.D.3d 591, 591, 813 N.Y.S.2d 501; People v. Jackson, 209 A.D.2d 247, 248, 618 N.Y.S.2d 340). In any event, the court made a sufficiently probing and tactful inquiry of juror No. 4 to determine that no intimidation had occurred (see People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901; People v. White, 73 A.D.3d 820, 821, 900 N.Y.S.2d 407). The defendant’s further contention that the court should have conducted an inquiry on whether other jurors were grossly unqualified to serve on the jury because of the alleged intimi- dation is unpreserved for appellate review (see CPL 470.05(2]; People v. Bunch, 278 A.D.2d 501, 502, 717 N.Y.S.2d 385) and, in any event, without merit (see People v. White, 73 A.D.3d at 821, 900 N.Y.S.2d 407).
[2–4] Contrary to the defendant’s contention, the County Court did not improvidently exercise its discretion in permitting the People to elicit testimony regarding a prior incident of domestic violence in July 2019 between the defendant and the complainant, who was then his wife (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286; People v. Gonzales, 186 A.D.3d 1711, 1712, 129 N.Y.S.3d 823; People v. Braswell, 181 A.D.3d 818, 819, 118 N.Y.S.3d 425). The evidence provided relevant background material to enable the jury to understand the defendant’s relationship with the complainant (see People v. Taylor, 210 A.D.3d 807, 808, 177 N.Y.S.3d 709; People v. Braswell, 181 A.D.3d at 819, 118 N.Y.S.3d 425). The court also did not improvidently exercise its discretion by admitting evidence of the defendant’s verbal abuse of the complainant, reckless driving, and a road rage incident with another driver, all of which preceded and were inextricably interwoven with the subject crimes and which completed the narrative of events (see People v. Elias, 199 A.D.3d 828, 829, 154 N.Y.S.3d 270; People v. Hernandez, 240 A.D.2d 759, 660 N.Y.S.2d 1004; People v. Quesada, 118 A.D.2d 604, 604, 499 N.Y.S.2d 208). Moreover, any undue prejudice to the defendant was minimized by the court’s limiting instructions (see People v. Durrant, 173 A.D.3d 890, 891, 102 N.Y.S.3d 718), which the jury is presumed to have followed (see People v. Tohom, 109 A.D.3d 253, 268, 969 N.Y.S.2d 123).
Contrary to the defendant’s contention, viewing the record in its entirety, he received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). Further, he was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Richards, 208 A.D.3d 603, 171 N.Y.S.3d 834).
[5, 6] The defendant contends that certain orders of protection issued at the time of sentencing should be vacated because the County Court failed to state on the record its reasons for issuing them and because the duration of these orders of protection was excessive. These contentions are unpreserved for appellate review, as the defendant did not raise these contentions at sentencing or move to amend the final orders of protection on these grounds (see CPL 470.05[2]; People v. Zhiminaicela–Duchitanga, 214 A.D.3d 1005, 1006, 184 N.Y.S.3d 607; People v. Shaquan G., 194 A.D.3d 744, 744, 143 N.Y.S.3d 595; People v. Carmichael, 170 A.D.3d 742, 743, 95 N.Y.S.3d 271; People v. Elgut, 164 A.D.3d 1360, 1361, 83 N.Y.S.3d 330). Under the circumstances, we decline to reach these contentions in the exercise of our interest of justice jurisdiction, as the better practice—and best use of judicial resources—is for a defendant seeking adjustment of an order of protection to request relief from the issuing court in the first instance, resorting to the appellate court only if necessary (see People v. Carmichael, 170 A.D.3d at 743, 95 N.Y.S.3d 271).
The defendant’s contention that the sentence imposed improperly penalized him for exercising his right to a jury trial is unpreserved for appellate review (see People v. Cherry, 127 A.D.3d 879, 5 N.Y.S.3d 527). In any event, the record fails to establish that the County Court penalized the defendant for exercising his right to proceed to trial (see People v. Nivelo, 222 A.D.3d 779, 780, 201 N.Y.S.3d 482; People v. Baptiste, 204 A.D.3d 825, 827, 164 N.Y.S.3d 510).
[7] Contrary to the defendant’s contention, the imposition of consecutive sentences for the two counts of attempted manslaughter in the first degree was legal because the firing of multiple shots at two New York State Troopers constituted separate and distinct acts (see People v. McKnight, 16 N.Y.3d 43, 49, 917 N.Y.S.2d 594, 942 N.E.2d 1019; People v. Smith, 171 A.D.3d 1102, 1106, 98 N.Y.S.3d 313; People v. Boone, 30 A.D.3d 535, 816 N.Y.S.2d 570; People v. Maldonado, 5 A.D.3d 505, 772 N.Y.S.2d 583). Moreover, the defendant’s contention that his sentence violated the prohibitions against cruel and unusual punishment under the United States and New York State Constitutions is unpreserved for appellate review and, in any event, without merit (see People v. White, 199 A.D.3d 843, 843, 154 N.Y.S.3d 255; People v. Parsley, 150 A.D.3d 894, 896, 55 N.Y.S.3d 267).
[8] Nevertheless, under the circumstances of this case, including the defendant’s history of mental illness and lack of prior criminal convictions, the sentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant’s remaining contention is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.
CONNOLLY, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.