Opinion
747 KA 16-01978
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Artis L. MILLER, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from a domestic violence homicide, defendant appeals from a judgment convicting him, upon a jury verdict, of manslaughter in the first degree ( Penal Law § 125.20 [1] ). We affirm.
We reject defendant's contention that the search warrant for his cell phones was issued without probable cause. According "great deference to the issuing [Justice]" ( People v. Harper , 236 A.D.2d 822, 823, 653 N.Y.S.2d 771 [4th Dept. 1997], lv denied 89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989 [1997] ), we conclude that Supreme Court properly determined that there was sufficient information in the warrant application to support a reasonable belief that evidence of a crime was on defendant's cell phones (see People v. Conley , 192 A.D.3d 1616, 1617-1618, 144 N.Y.S.3d 508 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 175 N.E.3d 442 [2021] ). Contrary to defendant's related contention, we conclude that the " ‘[m]inor discrepancies or misstatements [in the application] do not amount to egregious inaccuracies affecting [the] probable cause determination’ " ( People v. Anderson , 149 A.D.3d 1407, 1408, 54 N.Y.S.3d 176 [3d Dept. 2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 [2017] ) and that the "typographical error in the search warrant ... does not invalidate the search" ( People v. Shetler , 256 A.D.2d 1234, 1234, 682 N.Y.S.2d 784 [4th Dept. 1998] ; see generally Groh v. Ramirez , 540 U.S. 551, 558, 124 S.Ct. 1284, 157 L.Ed.2d 1068 [2004] ).
Defendant further contends that the court erred in refusing to suppress his statements made during questioning by the police because the officer failed to adequately convey the Miranda warnings by downplaying defendant's rights. Defendant's contention is not preserved for our review, however, inasmuch as he failed to raise that specific contention in his motion papers or at the hearing (see People v. Caballero , 23 A.D.3d 1031, 1032, 803 N.Y.S.2d 849 [4th Dept. 2005], lv denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975 [2006] ). In any event, we conclude that defendant's contention lacks merit (see People v. Mateo , 194 A.D.3d 1342, 1343-1344, 148 N.Y.S.3d 553 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 421, 174 N.E.3d 361 [2021] ; People v. Bakerx , 114 A.D.3d 1244, 1247, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ).
We reject defendant's contention that the court abused its discretion in allowing testimony about prior acts of domestic violence that defendant committed against the victim. We conclude that the testimony of the People's witnesses was "probative of intent, motive, and identity in this domestic violence homicide, and its probative value was not outweighed by its prejudicial impact" ( People v. Dixon , 171 A.D.3d 1470, 1471, 99 N.Y.S.3d 534 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 681, 130 N.E.3d 1291 [2019] ; see People v. Dorm , 12 N.Y.3d 16, 18-19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ). We note that the court's limiting instructions minimized any prejudice to defendant (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Washington , 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ).
Defendant contends that the court erred in failing to conduct an inquiry into whether a juror was asleep during the final portion of the videotaped questioning of defendant by the police that was played for the jury and in failing to discharge that juror. Defendant failed to preserve that contention for our review inasmuch as he did not request that the court conduct such an inquiry and did not move to discharge the juror (see People v. Crumpler , 163 A.D.3d 1457, 1460, 79 N.Y.S.3d 835 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018], reconsideration denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ). Indeed, we conclude on this record that defendant " ‘demonstrated a willingness to continue to accept the juror as a trier of fact’ and now ‘cannot be heard to complain’ " ( id. ). We decline to exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime 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 [2007] ), we conclude that a different verdict would have been unreasonable and thus that the verdict is not 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 [1987] ).
Defendant's contention that the court erred in ordering him to pay restitution without a hearing is not preserved for our review inasmuch as defendant "did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order during the sentencing proceeding" ( People v. Horne , 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; see People v. Jones , 108 A.D.3d 1206, 1207, 969 N.Y.S.2d 364 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that they are unpreserved for our review (see CPL 470.05 [2] ) and, in any event, are without merit.
Finally, we note that the certificate of conviction incorrectly states that defendant was sentenced on August 3, 2016, and it must be amended to reflect the correct sentencing date of August 2, 2016 (see People v. Gray , 181 A.D.3d 1326, 1326, 121 N.Y.S.3d 764 [4th Dept. 2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 47, 149 N.E.3d 885 [2020] ).