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

1050
KA 11-00299
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM J. MILLER, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

WILLIAM J. MILLER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered March 13, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts) and attempted robbery 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 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 [2]) in connection with the
shooting death of his sister’s boyfriend. Defendant failed to
preserve for our review his contention that the evidence is legally
insufficient to support the conviction on the element of intent (see
People v Tolliver, 93 AD3d 1150, 1151, lv denied 19 NY3d 968; see
generally People v Gray, 86 NY2d 10, 19). In any event, that
contention is without merit. Viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that the evidence established that defendant sought the
assistance of his girlfriend’s brother to obtain a gun and/or locate a
person who was willing to kill the victim; he stated several times
during the day of the murder that he was going to “get” the victim;
and he directed his sister to contact the victim to come to her house,
where the victim was shot by a codefendant in defendant’s presence
(see generally People v Bleakley, 69 NY2d 490, 495). Viewing the
evidence in light of the elements of the crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
further contention that the verdict is against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495).
                                 -2-                          1050
                                                         KA 11-00299

     We reject defendant’s contention in his main brief that he was
denied effective assistance of counsel based both on defense counsel’s
failure to exercise a for-cause or peremptory challenge with respect
to a prospective juror (see People v Simmons, 119 AD3d 1343, 1344; see
generally People v Barboni, 21 NY2d 393, 407), and on defense
counsel’s failure to call defendant’s sister as a witness after he was
advised that she would exercise her Fifth Amendment right to remain
silent (see generally People v Thomas, 51 NY2d 466, 472-473). We
likewise reject defendant’s contention in his pro se supplemental
brief that he was denied effective assistance of counsel based on
defense counsel’s failure to request a charge on intoxication, in view
of the testimony of a prosecution witness that defendant was
intoxicated. Even assuming, arguendo, that the charge was warranted
(see People v Sirico, 17 NY3d 744, 745), we conclude that defendant
failed to show the absence of a strategic explanation for the failure
of defense counsel to request the charge (see People v Anderson, 120
AD3d 1549, 1549; see generally People v Caban, 5 NY3d 143, 152).
Indeed, the record establishes that defense counsel’s strategy was to
attack the credibility of the prosecution witness rather than to
advance a theory that defendant’s intoxication negated an element of
the respective crimes (see Penal Law § 15.25). Defendant’s remaining
allegations of ineffective assistance of counsel contained in his main
and pro se supplemental briefs also are without merit, and we conclude
that defendant received meaningful assistance of counsel (see
generally People v Baldi, 54 NY2d 137, 147).

     We reject defendant’s contention in his main brief that Supreme
Court erred in denying his pro se motion seeking new counsel to
represent him on his pro se CPL 330.30 motion to set aside the verdict
on the grounds of juror misconduct and ineffective assistance of
counsel, and for sentencing. Defense counsel did not take a position
adverse to defendant and, indeed, supported the allegations of juror
misconduct contained in the pro se motion (see People v Jones, 261
AD2d 920, 920, lv denied 93 NY2d 972; cf. People v Simon, 71 AD3d
1574, 1576, lv denied 15 NY3d 757, reconsideration denied 15 NY3d
856). In any event, we note that the court decided defendant’s motion
without consideration of defense counsel’s comments (see Simon, 71
AD3d at 1576). Finally, the sentence is not unduly harsh or severe.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
