THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARCUS MILLER DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), attempted assault in the first degree (§§ 110.00, 120.10 [1]), assault in the second degree (§ 120.05 [2]), criminal possession of a weapon in the third degree (§ 265.02 [1]), and petit larceny (§ 155.25), and, in appeal No. 2, defendant appeals from a resentence on that conviction.

We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v Weathington [appeal No. 2], 141 AD3d 1173, 1173 [4th Dept 2016], lv denied 28 NY3d 975 [2016]; People v Primm, 57 AD3d 1525, 1525 [4th Dept 2008], lv denied 12 NY3d 820 [2009]). We otherwise affirm the judgment in appeal No. 1 and affirm the resentence in appeal No. 2.

Defendant's challenge in appeal No. 1 to the legal sufficiency of the evidence is preserved for our review inasmuch as his motion for a trial order of dismissal, which he renewed at the close of his own case, was specifically directed at the alleged errors now advanced on appeal (see People v Brown, 204 AD3d 1390, 1392 [4th Dept 2022], lv denied 39 NY3d 985 [2022]; People v Moses, 197 AD3d 951, 953 [4th Dept 2021], lv denied 37 NY3d 1097 [2021], reconsideration denied 37 NY3d 1163 [2022]). Nonetheless, defendant's contention lacks merit. “Legal sufficiency review requires that we view the evidence in the light most favorable to the prosecution, and, when deciding whether a jury could logically conclude that the prosecution sustained its burden of proof, [w]e must assume that the jury credited the People's witnesses and gave the prosecution's evidence the full weight it might reasonably be accorded” (People v Allen, 36 NY3d 1033, 1034 [2021] [internal quotation marks omitted]). Viewed in that light, we conclude that the evidence—including the testimony of the victim, who personally knew defendant before the incident—is legally sufficient to establish defendant's identity as the perpetrator of the offenses as well as his use of deadly weapons to inflict serious injuries by repeatedly stabbing the victim (see Brown, 204 AD3d at 1392; People v Spencer, 191 AD3d 1331, 1331-1332 [4th Dept 2021], lv denied 37 NY3d 960 [2021]; People v Perkins, 160 AD3d 1455, 1455 [4th Dept 2018], lv denied 31 NY3d 1151 [2018]). Given the direct evidence of defendant's identity, which was corroborated by surveillance video footage depicting defendant and the victim leaving a bar together and then both entering defendant's vehicle, as well as photographs of the victim's multiple stab wounds, the lack of forensic evidence does not render the evidence legally insufficient (see Brown, 204 AD3d at 1392; see generally People v Randolph, 180 AD3d 716, 717 [2d Dept 2020], lv denied 35 NY3d 1048 [2020]).

Contrary to defendant's further contention in appeal No. 1, the verdict is not against the weight of the evidence. “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor” (People v Barnes, 158 AD3d 1072, 1073 [4th Dept 2018], lv denied 31 NY3d 1011 [2018] [internal quotation marks omitted]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

We further conclude with respect to appeal No. 1 that defendant was not denied his right to a fair and impartial jury. Defendant's contention that County Court erred in not issuing a curative instruction when prospective juror No. 118 stated that she “knew” defendant is not preserved because a curative instruction was not requested at the time of the statement (see CPL 470.05 [2]; see generally People v Perkins, 196 AD3d 1107, 1110 [4th Dept 2021], lv denied 37 NY3d 1028 [2021]; People v German, 145 AD3d 1550, 1551 [4th Dept 2016], lv denied 28 NY3d 1184 [2017]). Assuming, arguendo, that the court erred in not excusing prospective juror No. 26 for cause, we conclude that such an error would not require reversal because defendant had not exhausted his peremptory challenges at the time of the challenges for cause, and his peremptory challenges were not exhausted at the time the selection of the jury was complete (see CPL 270.20 [2]; People v Miller, 204 AD3d 1438, 1438-1439 [4th Dept 2022], lv denied 40 NY3d 935 [2023]; see also People v Smith, 200 AD3d 1689, 1690-1691 [4th Dept 2021], lv denied 38 NY3d 954 [2022]).

Finally, with respect to appeal No. 2, the resentence is not unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court