SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
703
KA 10-02512
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
VINCENT MILLER, DEFENDANT-APPELLANT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
VINCENT MILLER, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered July 27, 2010. The judgment convicted defendant,
upon a jury verdict, of promoting prison contraband in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of promoting prison contraband in the first degree
(Penal Law § 205.25 [2]). Defendant failed to preserve for our review
his challenge to the legal sufficiency of the evidence by his general
motion for a trial order of dismissal at the close of the People’s
case (see People v Gray, 86 NY2d 10, 19). Even assuming, arguendo,
that he made a specific objection at that time, we note that he failed
to renew his motion after presenting evidence and thus failed to
preserve his challenge for that reason as well (see People v Hines, 97
NY2d 56, 61, rearg denied 97 NY2d 678). In any event, the evidence is
legally sufficient to support the conviction inasmuch as the People
established that defendant, who was incarcerated, knowingly possessed
“dangerous contraband” in violation of Penal Law § 205.25 (2).
Defendant likewise failed to preserve for our review his
challenge to the testimony of a correction officer, inasmuch as he
failed to raise a specific objection to that testimony at trial (see
CPL 470.05 [2]; People v Huebert, 30 AD3d 1018, 1018, lv denied 7 NY3d
813). We nevertheless conclude that County Court did not err in
admitting that testimony inasmuch as the correction officer testified
based upon personal knowledge and did not offer any opinion concerning
ultimate factual issues that were “more properly within the province
of the jury” (People v Rivera, 212 AD2d 1040, 1041, lv denied 85 NY2d
-2- 703
KA 10-02512
979; see generally People v Truscio, 251 AD2d 966, 967, lv denied 92
NY2d 986). There also is no merit to defendant’s contention that the
court erred in precluding evidence of defendant’s prior prison
disciplinary hearing inasmuch as such evidence was irrelevant and may
merely have confused the jurors (see People v Venditto, 171 AD2d 952,
953-954, lv denied 78 NY2d 1130). The sentence is not unduly harsh or
severe.
Contrary to defendant’s contention in his pro se supplemental
brief, he was not deprived of effective assistance of counsel based on
the failure of defense counsel to move to dismiss the indictment on
the ground that defendant was deprived of his right to appear before
the grand jury pursuant to CPL 190.50 (5) (c). Indeed, the record
establishes that defendant was transported to the grand jury
proceeding and that, after being provided with the opportunity to
consult with defense counsel, defendant elected not to testify.
Furthermore, we conclude that defense counsel’s preparation for trial
was more than adequate, and we reject defendant’s contention that he
did not receive meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). We have reviewed defendant’s remaining
contentions in his main and pro se supplemental brief and conclude
that they are without merit.
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court