SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
924
KA 10-01381
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DONNELL LLOYD, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 24, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon in the second degree.
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 [1]) and
criminal possession of a weapon in the second degree (§ 265.03 [3]),
defendant contends that Supreme Court erred in refusing to suppress
evidence seized during the search of his home because the search was
unlawful. We reject that contention. The search was initiated and
conducted by, inter alia, defendant’s parole officer after defendant’s
GPS ankle bracelet stopped transmitting and defendant failed to
observe his required curfew. We conclude that the parole officer’s
search of defendant’s home for defendant, the bracelet, or the GPS
transmitter was lawful because it was “rationally and reasonably
related to the performance of his duty as a parole officer” (People v
Huntley, 43 NY2d 175, 179; see People v Johnson, 94 AD3d 1529, 1531-
1532, lv denied 19 NY3d 974; People v Nappi, 83 AD3d 1592, 1593-1594,
lv denied 17 NY3d 820).
Defendant failed to preserve for our review his further
contention that he was denied a fair trial by prosecutorial misconduct
based on comments made by the prosecutor during his opening and
closing statements (see People v Figgins, 72 AD3d 1599, 1600, lv
denied 15 NY3d 893). In any event, we conclude that the two comments
that the People do not dispute were improper, as well as the remaining
comments to which defendant now objects, were not so egregious as to
deny defendant a fair trial (see People v Dizak, 93 AD3d 1182, 1184,
-2- 924
KA 10-01381
lv denied 19 NY3d 972; People v Jacobson, 60 AD3d 1326, 1328, lv
denied 12 NY3d 916).
We reject defendant’s further contention that he was deprived of
effective assistance of counsel. A review of the record as a whole,
including the trial, demonstrates that defendant received meaningful
representation (see generally People v Schulz, 4 NY3d 521, 530-531;
People v Baldi, 54 NY2d 137, 147). In addition, although the People
correctly concede that the court erred in permitting the prosecutor to
introduce at trial a “wanted poster” that depicted defendant and
others as the 10 most wanted suspects in the Buffalo area, we conclude
that the error is harmless. The proof of defendant’s guilt is
overwhelming, and “there is no significant probability that defendant
would have been acquitted if not for the error” (People v Batjer, 77
AD3d 1279, 1281, lv denied 17 NY3d 951). Defendant’s neighbor
testified that he saw defendant shoot the victim twice at close range,
another witness heard the shots, the victim implicated defendant as
the shooter, ballistics evidence linked the bullets that killed the
victim with ammunition seized from defendant’s bedroom, and defendant
immediately fled the scene, demonstrating consciousness of guilt (see
generally People v Zuhlke, 67 AD3d 1341, 1341, lv denied 14 NY3d 774).
Furthermore, we note that the prosecutor did not mention the poster
during his summation.
Finally, we conclude that the sentence is not unduly harsh or
severe.
Entered: October 5, 2012 Frances E. Cafarell
Clerk of the Court