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

559
KA 10-01503
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMIE C. HARRISON, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

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 June 20, 2007. The judgment convicted defendant,
upon a jury verdict, of murder in the second 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 murder in the second degree (Penal Law § 125.25
[1]) for intentionally causing the death of Jamon Miller, whose body
was found in defendant’s home. In his statements to the police,
defendant claimed that someone else, whom he would not identify, had
killed Miller, and that he then killed the person who was responsible
for killing Miller. That other person was referred to as “W” by the
police during the interrogation of defendant. On appeal, defendant
contends that reversal is required because he may have been convicted
of an unindicted act of murder, i.e., the killing of “W.” That
contention is not preserved for our review (see People v Allen, 24
NY3d 441, 449-450), and is without merit in any event. The prosecutor
and defense counsel reminded the jury during their opening and closing
statements that defendant was charged with killing only Miller, and
County Court gave similar instructions to the jury. There is
therefore no danger that the jury convicted defendant of an unindicted
act (see People v Cooke, 119 AD3d 1399, 1400, affd 24 NY3d 1196; see
also People v Rodriguez, 32 AD3d 1203, 1205, lv denied 8 NY3d 849).

     Defendant contends that his statements to the police were
involuntarily made inasmuch as he was sleep-deprived and intoxicated
during the 12-hour interrogation. Defendant failed to raise that
specific contention as a ground for suppressing those statements in
his motion papers or at the suppression hearing and thus failed to
preserve that contention for our review (see People v Brown, 120 AD3d
954, 955, lv denied 24 NY3d 1118). In any event, we conclude that the
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                                                         KA 10-01503

record does not support defendant’s contention regarding the alleged
involuntariness of his statements (see People v Hunter, 46 AD3d 1374,
1375, lv denied 10 NY3d 812; People v Swimley, 190 AD2d 1070, 1071, lv
denied 81 NY2d 977).

     Viewing the evidence in light of the elements of the crime 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).
Finally, the sentence is not unduly harsh or severe.




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
