People v. Miller — 82 A.D.3d 1127

Majority

p. 1127

The People of the State of New York, Respondent, v Cedric Miller, Appellant.

[919 NYS2d 353]

p. 1128

As correctly conceded by the People, the trial court erred in failing to grant the defendant’s request to instruct the jury that an eyewitness is not obligated to come forward to law enforcement officials upon learning of the defendant’s arrest (see People v Dawson, 50 NY2d 311 [1980]; People v Bryan, 55 AD3d 921 [2008]; People v Paasewe, 276 AD2d 807 [2000]; People v Casseus, 199 AD2d 525 [1993]; People v Allen, 177 AD2d 700 [1991]; People v Reed, 83 AD2d 645 [1981]). However, under the circumstances, the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]; People v Archie, 200 AD2d 676 [1994]; People v Davis, 172 AD2d 553 [1991]).

The defendant was not deprived of his right to a public trial (see US Const, 6th Amend; Civil Rights Law § 12; Judiciary Law § 4; People v Jones, 96 NY2d 213 [2001]). Although the defendant initially objected to the exclusion of his girlfriend during an undercover officer’s testimony, defense counsel subsequently withdrew this objection in the defendant’s presence. Accordingly, the defendant waived his right to have his girlfriend present during this portion of the trial (see People v Moody, 300 AD2d 510 [2002]; People v Roque, 291 AD2d 417 [2002]).

The defendant was afforded meaningful representation (see People v Caban, 5 NY3d 143 , 152 [2005]; People v Benevento, 91 NY2d 708 [1998]; People v Rand, 58 AD3d 758 [2009]). Dillon, J.E, Leventhal, Chambers and Austin, JJ., concur.

Cases cited

People v. Dawson 50 NY2d 311 N.Y. 1980-05-06 p. 1128
People v. Bryan 55 AD3d 921 N.Y. App. Div. 2008-10-28 p. 1128
People v. Casseus 199 AD2d 525 N.Y. App. Div. 1993-12-27 p. 1128
People v. Reed 83 AD2d 645 N.Y. App. Div. 1981-07-27 p. 1128
People v. Crimmins 36 NY2d 230 N.Y. 1975-02-25 p. 1128
People v. Archie 200 AD2d 676 N.Y. App. Div. 1994-01-24 p. 1128
People v. Davis 172 AD2d 553 N.Y. App. Div. 1991-04-01 p. 1128
People v. Jones 96 NY2d 213 N.Y. 2001-05-08 p. 1128
People v. Moody 300 AD2d 510 N.Y. App. Div. 2002-12-16 p. 1128
People v. Roque 291 AD2d 417 N.Y. App. Div. 2002-02-04 p. 1128
People v. Caban 5 NY3d 143 N.Y. 2005-06-14 at 152 p. 1128
People v. Benevento 91 NY2d 708 N.Y. 1998-06-11 p. 1128
People v. Rand 58 AD3d 758 N.Y. App. Div. 2009-01-20 p. 1128