LEWIS, KEVIN R., PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    176
    KA 08-00131
    PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    KEVIN R. LEWIS, DEFENDANT-APPELLANT.
    LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.
    KEVIN R. LEWIS, DEFENDANT-APPELLANT PRO SE.
    MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Richard A.
    Keenan, J.), rendered January 4, 2008. The judgment convicted
    defendant, upon jury verdicts, of murder in the second degree,
    criminal possession of a weapon in the second degree (two counts),
    criminal possession of a weapon in the third degree (two counts),
    attempted murder in the second degree, assault in the first degree
    (two counts), robbery in the first degree (two counts) and burglary in
    the first degree (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him of,
    inter alia, murder in the second degree (Penal Law § 125.25 [1]) and
    attempted murder in the second degree (§§ 110.00, 125.25 [1])
    following two jury trials. The charges at issue in the first trial
    arose from an incident in which defendant shot and injured a woman
    after forcing his way into her home. The charges at issue in the
    second trial arose from an incident in which defendant shot and killed
    a man on a bicycle after the man had spoken with defendant’s
    girlfriend.
    Based on our review of the record, including the October 19, 2007
    transcript of County Court’s decision on those parts of the omnibus
    motion of defendant seeking to suppress certain evidence, we conclude
    that the court properly denied that part of the motion seeking to
    suppress his statements to the police during an interview. “The
    evidence at the suppression hearing establishes that, after receiving
    . . . Miranda warnings, defendant indicated that he understood his
    [Miranda] rights and agreed to speak with the [police]” (People v
    Jacobson, 60 AD3d 1326, 1327, lv denied 12 NY3d 916). The fact that
    -2-                           176
    KA 08-00131
    defendant was taken to a county jail booking area and then returned to
    the police station after his interview commenced but before he made
    the statements at issue is inconsequential. “It is well settled that
    where a person in police custody has been issued Miranda warnings and
    voluntarily and intelligently waives [his or her Miranda] rights, it
    is not necessary to repeat the warnings prior to subsequent
    questioning within a reasonable time thereafter, so long as the
    custody has remained continuous” (People v Glinsman, 107 AD2d 710,
    710, lv denied 64 NY2d 889, cert denied 
    472 US 1021
    ; see People v
    Peterkin, 89 AD3d 1455; Jacobson, 60 AD3d at 1327).
    Defendant further contends that one of his statements to the
    police was involuntary inasmuch as it was obtained as a result of
    police deception, i.e., the use of a videotape as a prop, and as a
    result of the conduct of the police in attempting to capitalize on the
    potential criminal liability of defendant’s girlfriend. We reject
    that contention. “Deceptive police stratagems in securing a statement
    ‘need not result in involuntariness without some showing that the
    deception was so fundamentally unfair as to deny due process or that a
    promise or threat was made that could induce a false confession’ ”
    (People v Dishaw, 30 AD3d 689, 690, lv denied 7 NY3d 787, quoting
    People v Tarsia, 50 NY2d 1, 11). Under the circumstances of this
    case, the fact that the police used a videotape as a prop does not
    warrant suppression (see id. at 690-691). Moreover, although threats
    by the police to arrest a person’s loved ones may result in
    suppression (see People v Keene, 148 AD2d 977, 978-979), “[i]t is not
    an improper tactic for police to capitalize on a defendant’s sense of
    shame or reluctance to involve his [loved ones] in a pending
    investigation absent circumstances [that] create a substantial risk
    that a defendant might falsely incriminate himself [or herself]”
    (People v Balkum, 71 AD3d 1594, 1597, lv denied 14 NY3d 885 [internal
    quotation marks omitted]). Here, there is no evidence “that the
    police promised not to arrest defendant’s girlfriend if defendant
    talked . . ., and there were no other circumstances creating a
    substantial risk that defendant would falsely incriminate himself”
    (id. [internal quotation marks omitted]).
    In addition, there is no merit to the contention of defendant
    that the length of his interrogation negated the voluntariness of his
    statements to the police. The length of an interrogation does not
    necessarily render a statement obtained during that time involuntary,
    and there is no evidence here that the duration of defendant’s
    interviews with the police, which we note totaled approximately four
    hours over a six-hour time period, contributed to the statements in
    question (see e.g. People v McWilliams, 48 AD3d 1266, 1267, lv
    denied 10 NY3d 961; People v Weeks, 15 AD3d 845, 846-847, lv denied 4
    NY3d 892). In any event, we conclude that any error in the admission
    in evidence of the statements in question is harmless (see generally
    People v Crimmins, 36 NY2d 230, 237).
    Defendant further contends that the court erred in refusing to
    suppress an eyewitness identification of him from a photo array
    because the witness was shown a prior photo array that also contained
    -3-                           176
    KA 08-00131
    defendant’s photograph. Even assuming, arguendo, that defendant’s
    contention is preserved for our review, we conclude that it is without
    merit. “ ‘Multiple photo identification procedures are not inherently
    suggestive’ ” (People v Dickerson, 66 AD3d 1371, 1372, lv denied 13
    NY3d 859). “While ‘the inclusion of a single suspect’s photograph in
    successive arrays is not a practice to be encouraged’ ” (People v
    Beaty, 89 AD3d 1414, ___ ), an “identification [is] not rendered
    unduly suggestive merely because the witness was shown more than one
    photo array and defendant’s photograph was the only photograph shown
    in both photo arrays” (Dickerson, 66 AD3d at 1372). Here, although
    defendant’s photograph appeared in the same sequence in each photo
    array, the record establishes that different photographs of defendant
    were used in each presentation to the witness (see id.), that there
    was a two-day lapse of time between the presentations (see generally
    id.; People v Quinones, 228 AD2d 796, 796-797), and that the witness
    appears to have identified defendant after the police addressed her
    fears with respect to the safety of her family. Considering the
    circumstances of the photo arrays, we conclude that there is nothing
    unduly suggestive in the procedure used to identify defendant as the
    shooter in the second incident (see generally Dickerson, 66 AD3d at
    1372).
    Defendant failed to preserve for our review his contention that
    the murder conviction is not supported by legally sufficient evidence
    (see People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10,
    19) and, in any event, that contention lacks merit. Viewing the
    evidence in the light most favorable to the People (see People v
    Contes, 60 NY2d 620, 621), we conclude that defendant’s intent to kill
    the victim was inferable from his conduct, i.e., approaching and
    shooting the victim in the stomach and chest at close range (see
    People v Green, 74 AD3d 1899, 1900, lv denied 15 NY3d 852; People v
    Colon, 275 AD2d 797, lv denied 95 NY2d 904; see generally People v
    Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
    elements of the crime of murder in the second degree as charged to the
    jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
    further contention that the verdict with respect to that count is
    against the weight of the evidence (see generally Bleakley, 69 NY2d at
    495).
    We conclude that “defense counsel’s failure to call an expert
    [ballistics] witness [at either of the two trials] did not constitute
    ineffective assistance of counsel inasmuch as defendant failed to
    demonstrate ‘that the expert’s testimony would have assisted the trier
    of fact or that defendant was prejudiced by the absence of such
    testimony’ ” (People v Powell, 81 AD3d 1307, 1307, lv denied 17 NY3d
    799; see People v Loret, 56 AD3d 1283, lv denied 11 NY3d 927).
    “[W]ith respect to defendant’s challenge to the sentence imposed,
    along with an alleged trial tax imposed by the court, we note that
    [t]he mere fact that a sentence imposed after trial is greater than
    that offered in connection with plea negotiations is not proof that
    defendant was punished for asserting his right to trial . . . Indeed,
    the record here shows no retaliation or vindictiveness against the
    defendant for electing to proceed to trial” (People v Russell, 83 AD3d
    -4-                           176
    KA 08-00131
    1463, 1465, lv denied 17 NY3d 800 [internal quotation marks omitted]).
    The sentence is not unduly harsh or severe.
    Defendant’s remaining contentions are raised in his pro se
    supplemental brief. Defendant contends that the court erred in
    admitting in evidence the statement of the murder victim to a police
    officer shortly after the shooting under the excited utterance
    exception to the hearsay rule. That contention lacks merit inasmuch
    as the victim was under extraordinary stress when the statement was
    made (see People v Jones, 66 AD3d 1442, lv denied 13 NY3d 939).
    Defendant’s further contention “that he was denied his right to
    testify before the [g]rand [j]ury is based on material dehors the
    record, and thus not susceptible of review . . . In any event,
    defendant waived that contention by failing to move to dismiss the
    indictment pursuant to CPL 190.50 (5) (c)” (People v Sachs, 280 AD2d
    966, 966, lv denied 96 NY2d 834, 97 NY2d 708). Finally, we reject the
    contention of defendant that he was denied a prompt preliminary
    hearing. “ ‘[T]here is no constitutional or statutory right to a
    preliminary hearing . . ., nor is it a jurisdictional predicate to
    indictment’ ” (People v Caswell, 56 AD3d 1300, 1302, lv denied 11 NY3d
    923, 12 NY3d 781, cert denied ___ US ___, 
    129 S Ct 2775
    ). Even
    assuming, arguendo, that defendant was entitled to be released on his
    own recognizance based on the court’s failure to afford him a
    preliminary hearing, we conclude that such failure does not require
    dismissal of the indictment or a new trial (see People v Bensching,
    117 AD2d 971, lv denied 67 NY2d 939; see also People v Russ, 292 AD2d
    862, lv denied 98 NY2d 713, 99 NY2d 539).
    Entered:   March 23, 2012                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 08-00131

Filed Date: 3/23/2012

Precedential Status: Precedential

Modified Date: 10/8/2016