PEOPLE v. MILLS (2020)

MEMORANDUM AND ORDER

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 criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). Defendant contends that Supreme Court erred in refusing to suppress his statements to the police because he lacked the intellectual capacity to make voluntary and knowing statements. We reject that contention. A “defendant's impaired intelligence is but one factor to be considered in the totality of circumstances voluntariness analysis where, as here, there is no evidence of mental retardation so great as to render the accused completely incapable of understanding the meaning and effect of [the] confession” (People v. Wilson, 151 A.D.3d 1836, 1837, 58 N.Y.S.3d 775 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Williams, 62 N.Y.2d 285, 289, 476 N.Y.S.2d 788, 465 N.E.2d 327 [1984]).

Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Although an acquittal would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1; Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant contends that the court, in response to a jury note, erred in submitting to the jury for its examination defendant's driver's license, which defendant asserts was not admitted in evidence (see CPL 310.20 [1]). Defense counsel, however, did not object to the submission of the driver's license to the jury, and thus the issue is not preserved for our review (see People v. Dame, 144 A.D.3d 1625, 1626, 42 N.Y.S.3d 514 [4th Dept. 2016], lv denied 29 N.Y.3d 948, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017]; see also People v. Brown, 178 A.D.2d 647, 647-648, 578 N.Y.S.2d 221 [2d Dept. 1991]). 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]).

Defendant also failed to preserve his further contention that he was deprived of his right to a fair trial because of improper statements made by the prosecutor during summation (see People v. Tonge, 93 N.Y.2d 838, 839, 688 N.Y.S.2d 88, 710 N.E.2d 653 [1999]). In any event, defendant's contention is without merit. “Reversal based on prosecutorial misconduct is ‘mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law’ ” (People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259 [4th Dept. 2009], lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009]) and, here, “[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial” (People v. Jones, 114 A.D.3d 1239, 1241, 980 N.Y.S.2d 670 [4th Dept. 2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [2014], lv denied 25 N.Y.3d 1166, 15 N.Y.S.3d 298, 36 N.E.3d 101 [2015] [internal quotation marks omitted]).

Finally, we have reviewed defendant's remaining contention and conclude that it lacks merit.