| People v Lewis |
| 2007 NY Slip Op 07530 [44 AD3d 422] |
| October 11, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Martin Lewis, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered February 9,2004, convicting defendant, after a jury trial, of murder in the second degree, grand larceny in thethird degree, and 83 counts of forgery in the second degree, and sentencing him, as a secondfelony offender, to an aggregate term of 36 years to life, unanimously affirmed.
The People's failure to comply with the time limit in CPL 240.90 (1), which applies to a CPL240.40 (2) (b) (vi) motion to compel handwriting exemplars, does not warrant reversal (seePeople v Finkle, 192 AD2d 783, 787-788 [1993], lv denied 82 NY2d 753 [1993]).Although the People failed to show good cause for their delay, the delay itself did not causedefendant any prejudice (see generally People v Jenkins, 98 NY2d 280 [2002]). In anyevent, were we to find any error in the admission of the exemplars obtained by way of the belatedmotion, we would find it to be harmless. There was ample additional evidence of defendant'sforgeries, including the testimony of two witnesses who saw him writing the victim's name onchecks and the fact that some were payable to defendant's friend who had no connection to thevictim. Moreover, the forgeries formed only a small part of the overwhelming circumstantialevidence supporting the murder charge. For these reasons, counsel's failure to cite the statutorytime limit in his opposition to the People's motion did not prejudice defendant's case or deprivehim of a fair trial (see People v Hobot, 84 NY2d 1021, 1024 [1995]). Accordingly, weconclude that defendant received effective assistance under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]).
The various evidentiary rulings challenged by defendant on appeal were appropriateexercises of discretion, in which the court admitted testimony that completed the narrative,explained other evidence or showed defendant's state of mind at certain junctures. This evidencewas highly probative in this circumstantial case, and was not unduly prejudicial. Defendant'spurported standing Confrontation Clause objection, made during jury selection, was insufficientto alert the court to any specific claims. Accordingly, defendant did not preserve any of hispresent constitutional challenges to the evidence at issue, and we decline to review them in theinterest of justice. Were we to review these claims, we would reject them.
Defendant's claims regarding the prosecutor's summation are unpreserved and we decline[*2]to review them in the interest of justice. Were we to reviewthese claims, we would find them without merit. Concur—Tom, J.P., Mazzarelli,Friedman, Sullivan and Nardelli, JJ.