        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1007
KA 14-00670
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MILES S. MITCHELL, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered October 29, 2013. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree (two counts), attempted robbery in the first degree, attempted
robbery in the second degree and criminal possession of a weapon in
the second degree (two counts).

     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 in accordance with the following 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 NY3d 342, 349), we reject defendant’s
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). 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 AD2d 764, 765, lv denied
74 NY2d 749). 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 AD3d 805, 806, lv denied 2 NY3d
797). 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 NY2d 230, 241-242).

      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 AD3d 1522, 1523,
lv denied 25 NY3d 1209; People v Fowler-Graham, 124 AD3d 1403, 1403-
1404, lv denied 25 NY3d 1072; see generally People v Harris, 19 NY3d
679, 685). 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 AD2d 146, 154, lv denied 100 NY2d
585; cf. People v Casillas, 134 AD3d 1394, 1395-1396). 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 AD3d 1374, 1375, lv denied 27 NY3d 1005). Furthermore,
his “responses were unequivocal despite [his] use of the word
‘think’ ” (People v Rogers, 103 AD3d 1150, 1152, lv denied 21 NY3d
946).

     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 NY2d
at 237), 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 AD2d 887, 887).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
