SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

924 

KA 10-01381 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DONNELL LLOYD, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN

OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (M.

William Boller, A.J.), rendered June 24, 2010. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree and

criminal possession of a weapon in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of murder in the second degree (Penal Law § 125.25 [1]) and

criminal possession of a weapon in the second degree (§ 265.03 [3]),

defendant contends that Supreme Court erred in refusing to suppress

evidence seized during the search of his home because the search was

unlawful. We reject that contention. The search was initiated and

conducted by, inter alia, defendant’s parole officer after defendant’s

GPS ankle bracelet stopped transmitting and defendant failed to

observe his required curfew. We conclude that the parole officer’s

search of defendant’s home for defendant, the bracelet, or the GPS

transmitter was lawful because it was “rationally and reasonably

related to the performance of his duty as a parole officer” (People v

Huntley, 43 NY2d 175, 179; see People v Johnson, 94 AD3d 1529, 1531-

1532, lv denied 19 NY3d 974; People v Nappi, 83 AD3d 1592, 1593-1594,

lv denied 17 NY3d 820). 

Defendant failed to preserve for our review his further

contention that he was denied a fair trial by prosecutorial misconduct

based on comments made by the prosecutor during his opening and

closing statements (see People v Figgins, 72 AD3d 1599, 1600, lv

denied 15 NY3d 893). In any event, we conclude that the two comments

that the People do not dispute were improper, as well as the remaining

comments to which defendant now objects, were not so egregious as to

deny defendant a fair trial (see People v Dizak, 93 AD3d 1182, 1184,
-2- 924 

KA 10-01381 

lv denied 19 NY3d 972; People v Jacobson, 60 AD3d 1326, 1328, lv

denied 12 NY3d 916). 

We reject defendant’s further contention that he was deprived of

effective assistance of counsel. A review of the record as a whole,

including the trial, demonstrates that defendant received meaningful

representation (see generally People v Schulz, 4 NY3d 521, 530-531;

People v Baldi, 54 NY2d 137, 147). In addition, although the People

correctly concede that the court erred in permitting the prosecutor to

introduce at trial a “wanted poster” that depicted defendant and

others as the 10 most wanted suspects in the Buffalo area, we conclude

that the error is harmless. The proof of defendant’s guilt is

overwhelming, and “there is no significant probability that defendant

would have been acquitted if not for the error” (People v Batjer, 77

AD3d 1279, 1281, lv denied 17 NY3d 951). Defendant’s neighbor

testified that he saw defendant shoot the victim twice at close range,

another witness heard the shots, the victim implicated defendant as

the shooter, ballistics evidence linked the bullets that killed the

victim with ammunition seized from defendant’s bedroom, and defendant

immediately fled the scene, demonstrating consciousness of guilt (see

generally People v Zuhlke, 67 AD3d 1341, 1341, lv denied 14 NY3d 774). 

Furthermore, we note that the prosecutor did not mention the poster

during his summation. 

Finally, we conclude that the sentence is not unduly harsh or

severe. 

Entered: October 5, 2012 Frances E. Cafarell

Clerk of the Court