Opinion
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Frederick C. MILLER, Defendant–Appellant.
Martin J. Mcguinness, Saratoga Springs, for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Wendy Evans Lehmann, New York Prosecutors Training Institute, Inc., Albany, of Counsel), for Respondent.
Martin J. Mcguinness, Saratoga Springs, for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Wendy Evans Lehmann, New York Prosecutors Training Institute, Inc., Albany, of Counsel), for Respondent.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). We reject defendant's contention that County Court erred in granting the People's motion to amend the indictment, inasmuch as the amendment "did not change the theory of the prosecution, nor did it otherwise tend to prejudice the defendant on the merits" ( People v. Spencer, 83 A.D.3d 1576, 1577, 921 N.Y.S.2d 586, lv. denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 [internal quotation marks omitted] ). Rather, the amendment "served simply to conform the indictment to the evidence presented to the grand jury, and to accurately reflect the criminal acts for which the grand jury intended to indict the defendant" ( People v. Jabbour, 73 A.D.3d 950, 950, 899 N.Y.S.2d 875 ; see generally People v. Clonick, 289 A.D.2d 1031, 1032, 735 N.Y.S.2d 700, lv. denied 97 N.Y.2d 728, 740 N.Y.S.2d 700, 767 N.E.2d 157 ), regardless of whether the court erred in considering a report that was not in evidence at the grand jury proceeding when granting the People's motion.
Defendant also contends that the court erred in denying his challenge for cause with respect to a prospective juror on the ground that she was biased in favor of a potential witness. We reject that contention. Even assuming, arguendo, that the prospective juror initially made "statements [that] raise[d] a serious doubt regarding [her] ability to be impartial" ( People v. Campanella, 100 A.D.3d 1420, 1421, 953 N.Y.S.2d 786, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [internal quotation marks omitted] ), we conclude that the record establishes that the court thereafter obtained her "unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence" ( People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 ). Defendant further contends that the court erred in denying his challenge for cause to the same prospective juror on the ground that she "made numerous statements during jury selection which established her heavy bias towards law enforcement." That contention is raised for the first time on appeal and thus is not preserved for our review (see People v. Horton, 79 A.D.3d 1614, 1615, 913 N.Y.S.2d 463, lv. denied 16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, CARNI, DeJOSEPH, and CURRAN, JJ., concur.