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