People v. McMillon, 77 A.D.3d 1375 (N.Y. App. Div. 2010). · Go Syfert
People v. McMillon, 77 A.D.3d 1375 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
32 citation events (32 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Arce-Santiago
N.Y. App. Div. · 2017 · confidence medium
Ordered that the judgment is affirmed. * Defendant failed to preserve his claim that the admission of the field test results through the testimony of Pratt violated his rights under the Confrontation Clause (see People v Kello, 96 NY2d 740, 743 [2001]; People v Cade, 110 AD3d 1238 , 1240-1241 [2013], lv denied 22 NY3d 1155 [2014]; People v Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19 NY3d 968 [2012], cert denied 568 US 1070 [2012]; People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited as authority (rule) People v. Durant
N.Y. App. Div. · 2013 · confidence medium
“Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give [g]reat deference ... [to the] fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (People v McMillon, 77 AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) People v. Durant
N.Y. App. Div. · 2013 · confidence medium
“Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give [g]reat deference ... [to the] fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (People v McMillon, 77 AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) People v. Moore
N.Y. App. Div. · 2013 · confidence medium
In any event, there is no due process requirement that the statement be electronically recorded (see People v Beckingham, 57 AD3d 1098, 1099-1100 [2008], lv denied 13 NY3d 742 [2009]; People v Nelson, 52 AD3d 534, 535 [2008], lv denied 11 NY3d 739 [2008]), nor is there any basis for an adverse inference charge to be given (see People v Rivera, 105 AD3d 1343, 1346 [2013], lv denied 21 NY3d 1045 [2013]; People v McMillon, 77 AD3d 1375, 1375 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited as authority (rule) People v. Moore
N.Y. App. Div. · 2013 · confidence medium
In any event, there is no due process requirement that the statement be electronically recorded (see People v Beckingham, 57 AD3d 1098, 1099-1100 [2008], lv denied 13 NY3d 742 [2009]; People v Nelson, 52 AD3d 534, 535 [2008], lv denied 11 NY3d 739 [2008]), nor is there any basis for an adverse inference charge to be given (see People v Rivera, 105 AD3d 1343, 1346 [2013], lv denied 21 NY3d 1045 [2013]; People v McMillon, 77 AD3d 1375, 1375 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited as authority (rule) People v. Cade
N.Y. App. Div. · 2013 · confidence medium
As a result, the alleged Confrontation Clause violation is unpreserved for our review (see People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]; People v Johnson, 66 AD3d 703, 703 [2009], lv denied 14 NY3d 771 [2010]).
discussed Cited as authority (rule) People v. Cade
N.Y. App. Div. · 2013 · confidence medium
As a result, the alleged Confrontation Clause violation is unpreserved for our review (see People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]; People v Johnson, 66 AD3d 703, 703 [2009], lv denied 14 NY3d 771 [2010]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2012 · confidence medium
Defendant failed to preserve for our review his further contention that his right of confrontation was violated at the predicate felony offender hearing at sentencing (see People v Dennis, 91 AD3d 1277, 1278 [2012]; People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited as authority (rule) People v. Mohamed
N.Y. App. Div. · 2012 · confidence medium
The entire case rested on whether the jury credited the testimony of the accomplice and her cousin, which placed defendant with his brother at all relevant times that evening. “[Although a finding that defendant was not the [second assailant] would not have been unreasonable given the lack of physical evidence and the questionable reliability of the [accomplice] who implicated defendant, it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v McMillon, 77 AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited "see" People v. Lee
N.Y. App. Div. · 2018 · signal: see · confidence high
Contrary to defendant's related contention, it is well settled that the failure to record his interrogation electronically does not constitute a denial of due process, and he therefore was not entitled to suppression of his statements on that ground ( see People v Kunz , 31 AD3d 1191, 1191 [4th Dept 2006], lv denied 7 NY3d 868 [2006]; see generally People v McMillon , 77 AD3d 1375, 1375 [4th Dept 2010], lv denied 16 NY3d 897 [2011]; People v Jarvis , 60 AD3d 1478, 1479 [4th Dept 2009], lv denied 12 NY3d 916 [2009]).
discussed Cited "see" GRAHAM, JR., LEEVARN, PEOPLE v
N.Y. App. Div. · 2015 · signal: see · confidence high
With respect to defendant’s contention that the court erred in denying his request for an adverse inference instruction regarding the fire investigator’s failure to record the interrogation of defendant, “[t]his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process . . . , and thus an adverse inference charge was not warranted” (People v Nathan, 108 AD3d 1077, 1078 , lv denied 23 NY3d 966 [internal quotation marks omitted]; see People v McMillon, 77 AD3d 1375, 1375 , lv denied 16 NY3d 89…
discussed Cited "see" People v. Graham
N.Y. App. Div. · 2015 · signal: see · confidence high
With respect to defendant’s contention that the court erred in denying his request for an adverse inference instruction regarding the fire investigator’s failure to record the interrogation of defendant, “ [t] his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process . . . , and thus an adverse inference charge was not warranted” (People v Nathan, 108 AD3d 1077 , 1078 [2013], lv denied 23 NY3d 966 [2014] [internal quotation marks omitted]; see People v McMillon, 77 AD3d 1375, 1375 [2010]…
discussed Cited "see" People v. Graham
N.Y. App. Div. · 2015 · signal: see · confidence high
With respect to defendant’s contention that the court erred in denying his request for an adverse inference instruction regarding the fire investigator’s failure to record the interrogation of defendant, “ [t] his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process . . . , and thus an adverse inference charge was not warranted” (People v Nathan, 108 AD3d 1077 , 1078 [2013], lv denied 23 NY3d 966 [2014] [internal quotation marks omitted]; see People v McMillon, 77 AD3d 1375, 1375 [2010]…
discussed Cited "see" People v. Odums
N.Y. App. Div. · 2014 · signal: see · confidence high
Here, the “[i]ssues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury[,] and there is no basis for disturbing its determinations” (People v Williams, 17 AD3d 203, 204 [2005], lv denied 4 NY3d 892 [2005]; see People v McMillon, 77 AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011]; see generally Bleakley, 69 NY2d at 495 ).
discussed Cited "see" ODUMS, TERRENCE, PEOPLE v
N.Y. App. Div. · 2014 · signal: see · confidence high
Here, the “[i]ssues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury[,] and there is no basis for disturbing its determinations” (People v Williams, 17 AD3d 203, 204 , lv denied 4 NY3d 892 ; see People v McMillon, 77 AD3d 1375, 1376 , lv denied 16 NY3d 897 ; see generally Bleakley, 69 NY2d at 495 ).
discussed Cited "see" People v. Odums
N.Y. App. Div. · 2014 · signal: see · confidence high
Here, the “[i]ssues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury[,] and there is no basis for disturbing its determinations” (People v Williams, 17 AD3d 203, 204 [2005], lv denied 4 NY3d 892 [2005]; see People v McMillon, 77 AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011]; see generally Bleakley, 69 NY2d at 495 ).
discussed Cited "see" People v. Nathan
N.Y. App. Div. · 2013 · signal: see · confidence high
Defendant also contends that the court erred in denying his request for an adverse inference charge concerning the failure of the police to record defendant’s interrogation. “ ‘[T]his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process’ . . . , and thus an adverse inference charge was not warranted” (People v Holloway, 71 AD3d 1486, 1487 [2010], lv denied 15 NY3d 774 [2010]; see People v Mc Millon, 77 AD3d 1375 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited "see" People v. Nathan
N.Y. App. Div. · 2013 · signal: see · confidence high
Defendant also contends that the court erred in denying his request for an adverse inference charge concerning the failure of the police to record defendant’s interrogation. “ ‘[T]his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process’ . . . , and thus an adverse inference charge was not warranted” (People v Holloway, 71 AD3d 1486, 1487 [2010], lv denied 15 NY3d 774 [2010]; see People v Mc Millon, 77 AD3d 1375 [2010], lv denied 16 NY3d 897 [2011]).
discussed Cited "see" NATHAN, DESHEQUAN L., PEOPLE v
N.Y. App. Div. · 2013 · signal: see · confidence high
Defendant also contends that the court erred in denying his request for an adverse inference charge concerning the failure of the police to record defendant’s interrogation. “ ‘[T]his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process’ . . . , and thus an adverse inference charge was not warranted” (People v Holloway, 71 AD3d 1486, 1487 , lv denied 15 NY3d 774 ; see People v McMillon, 77 AD3d 1375 , lv denied 16 NY3d 897 ).
discussed Cited "see" People v. Smalls
N.Y. App. Div. · 2012 · signal: see · confidence high
Defendant failed to object on the grounds raised on appeal, and he thus failed to preserve those contentions for our review (see People v Smith, 90 AD3d 1565, 1567 [2011], lv denied 18 NY3d 998 [2012]; see generally People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]; People v Smith, 24 AD3d 1253, 1253 [2005], lv denied 6 NY3d 818 [2006]).
discussed Cited "see" SMALLS, JR., ERVIN, PEOPLE v
N.Y. App. Div. · 2012 · signal: see · confidence high
Defendant failed to object on the grounds raised on appeal, and he thus failed to preserve those contentions for our review (see People v Smith, 90 AD3d 1565, 1567 , lv denied 18 NY3d 998 ; see generally People v McMillon, 77 AD3d 1375, 1375-1376 , lv denied 16 NY3d 897 ; People v Smith, 24 AD3d 1253, 1253 , lv denied 6 NY3d 818 ).
discussed Cited "see" People v. Smalls
N.Y. App. Div. · 2012 · signal: see · confidence high
Defendant failed to object on the grounds raised on appeal, and he thus failed to preserve those contentions for our review (see People v Smith, 90 AD3d 1565, 1567 [2011], lv denied 18 NY3d 998 [2012]; see generally People v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]; People v Smith, 24 AD3d 1253, 1253 [2005], lv denied 6 NY3d 818 [2006]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Andre M. McMillon, Jr.
Appellate Division of the Supreme Court of the State of New York.
Oct 1, 2010.
77 A.D.3d 1375
Cited by 30 opinions  |  Published

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered February 26, 2009. 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 following a jury trial 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 County Court erred in denying his request for an adverse inference charge concerning the failure of the police to record defendant’s interrogation. “ £[T]his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process’ . . . , and thus an adverse inference charge was not warranted” (People v Holloway, 71 AD3d 1486, 1487 [2010]; see People v Hammons, 68 AD3d 1800 [2009], lv denied 14 NY3d 801 [2010]). Defendant’s reliance on cases involving lost or destroyed evidence and missing witnesses is misplaced (see e.g. People v Joseph, 86 NY2d 565, 572 [1995]; People v Gonzalez, 68 NY2d 424 [1986]). In those cases, it was established that there was in fact evidence that was not presented at trial. Here, however, the evidence at issue, an electronic recording of defendant’s interrogation, never existed, nor were the police obligated to create such a recording.

Defendant failed to preserve for our review his further contention that he was deprived of his constitutional right to confront witnesses against him when the court allowed a police officer to testify that he confronted defendant with evidence that other[*1376] witnesses had placed defendant at the scene of the homicide. “Although the defendant objected to the testimony at issue, he did not specify the ground now raised on appeal. Therefore, the issue of whether he was deprived of his right of confrontation is unpreserved for appellate review” (People v Perez, 9 AD3d 376, 377 [2004], lv denied 3 NY3d 710 [2004]; see People v Rivera, 33 AD3d 450, 450-451 [2006], lv denied 7 NY3d 928 [2006]; People v Mack, 14 AD3d 517 [2005], lv denied 4 NY3d 833 [2005]). To the extent that defendant contends that the court erred in failing to issue a limiting instruction with respect to that testimony, we conclude that defendant likewise failed to preserve that contention for our review (see People v Martin, 58 AD3d 519 [2009], lv denied 12 NY3d 818 [2009]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, 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 the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give ‘[g]reat deference . . . [to the] fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495). Indeed, a jury is able to “assess [the] credibility and reliability [of the witnesses] in a manner that is far superior to that of reviewing judges[,] who must rely on the printed record” (People v Lane, 7 NY3d 888, 890 [2006]). Here, although a finding that defendant was not the shooter would not have been unreasonable given the lack of physical evidence and the questionable reliability of the People’s witnesses who implicated defendant, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley, 69 NY2d at 495). Present—Martoche, J.P., Carni, Green, Pine and Gorski, JJ.