People v. McCloud

Opinion

People v McCloud

2026 NY Slip Op 04690

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

EDWARD D. MCCLOUD, ALSO KNOWN AS DALE JOHNSON, DEFENDANT-APPELLANT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

525 KA 24-02003

Present: Whalen, P.J., Curran, Ogden, Greenwood, And Hannah, JJ.

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. KEANE, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered December 6, 2012. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (three counts), burglary in the first degree and robbery in the first degree.

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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 three counts of murder in the second degree (Penal Law § 125.25 [1], [3]), one count of burglary in the first degree (§ 140.30 [1]), and one count of robbery in the first degree

(§ 160.15 [2]).

Contrary to defendant's contention, County Court did not abuse its discretion by denying defendant's request for a missing witness charge. We conclude that defendant's request was untimely (see People v Arroyo, 111 AD3d 1299, 1300 [4th Dept 2013], lv denied 23 NY3d 960 [2014]; see generally People v Gonzalez, 68 NY2d 424, 428 [1986]).

Defendant contends that the prosecutor deprived him of a fair trial by making improper statements during summation. Most of the remarks identified by defendant on appeal "are unreviewable because they went unchallenged at trial" (People v Romero, 7 NY3d 911, 912 [2006]). In any event, defendant's contention is without merit. We conclude that any improper remarks made by the prosecutor during summation did not deny defendant a fair trial (see People v Williams, 233 AD3d 1463, 1465 [4th Dept 2024], lv denied 43 NY3d 1012 [2025]).

Defendant contends that the court erred when it sustained the prosecutor's hearsay objections. To the extent defendant's challenge is constitutional in nature, we conclude that such challenge is not preserved (see People v Lane, 7 NY3d 888, 889 [2006]; People v Harris, 229 AD3d 1055, 1056 [4th Dept 2024], lv denied 42 NY3d 971 [2024]; People v Davis, 87 AD3d 1332, 1334-1335 [4th Dept 2011], lv denied 18 NY3d 858 [2011], reconsideration denied 18 NY3d 956 [2012]). Moreover, defendant's contention that the testimony elicited was not being offered for its truth is likewise not preserved for our review (see CPL 470.05 [2]; People v Ashe, 166 AD2d 655, 655 [2d Dept 1990]; People v Zambrano, 114 AD2d 872, 872 [2d Dept 1985], lv denied 67 NY2d 659 [1986]; see generally Matter of Sheena PP. v Edward QQ., 238 AD3d 1417, 1420 [3d Dept 2025]).

Contrary to defendant's contention, we further conclude that defense counsel was not ineffective. Upon viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

Finally, as defendant contends, the certificate of conviction must be amended to reflect that he was sentenced to indeterminate terms of 25 years to life in prison on each of the three counts of murder in the second degree, and to determinate terms of 25 years in prison with five years of postrelease supervision for the counts of burglary in the first degree and robbery in the first degree, with all sentences to run concurrently (see generally People v Correa, 145 AD3d 1640, 1641 [4th Dept 2016]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court