Appellate Division of the Supreme Court of New York, 2009

People v. Miller

People v. Miller
Appellate Division of the Supreme Court of New York · Decided April 24, 2009
61 A.D.3d 1429; 877 N.Y.S.2d 545
People v. Miller

Cases that cite this one

7 later published cases cite this decision.

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered January 14, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree and making a punishable false written statement.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]), defendant contends that County Court erred in admitting in evidence the grand jury testimony and out-of-court statements of two witnesses following a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]). We reject that contention. The People established that the witnesses were unavailable based on the misconduct of individuals acting on defendant’s behalf, with defendant’s acquiescence (see People v Major, 251 AD2d 999 [1998], lv denied 92 NY2d 927 [1998]). Indeed, we further note that the People presented circumstantial evidence that threats made to the witnesses were in fact made at defendant’s request (see People v Washington, 34 AD3d 1193 [2006]). Viewing the evidence in light of the elements of the

*1430crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to the murder count (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s contention, the People presented evidence establishing the elements of identity and intent with respect to that count (see People v Nieves, 15 AD3d 868 [2005]; People v Pagan, 12 AD3d 1143 [2004], lv denied 4 NY3d 766 [2005]). We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.E, Martoche, Centra, Pine and Gorski, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.