| People v Lewis |
| 2012 NY Slip Op 02184 [93 AD3d 1264] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin R.Lewis, Appellant. |
—[*1] Kevin R. Lewis, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedJanuary 4, 2008. The judgment convicted defendant, upon jury verdicts, of murder in the seconddegree, criminal possession of a weapon in the second degree (two counts), criminal possessionof a weapon in the third degree (two counts), attempted murder in the second degree, assault inthe first degree (two counts), robbery in the first degree (two counts) and burglary in the firstdegree (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 inthe 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 firsttrial arose from an incident in which defendant shot and injured a woman after forcing his wayinto her home. The charges at issue in the second trial arose from an incident in which defendantshot 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 CountyCourt's decision on those parts of the omnibus motion of defendant seeking to suppress certainevidence, we conclude that the court properly denied that part of the motion seeking to suppresshis statements to the police during an interview. "The evidence at the suppression hearingestablishes that, after receiving . . . Miranda warnings, defendant indicatedthat he understood his [Miranda] rights and agreed to speak with the [police]" (People v Jacobson, 60 AD3d1326, 1327 [2009], lv denied 12 NY3d 916 [2009]). The fact that defendant wastaken to a county jail booking area and then returned to the police station after his interviewcommenced but before he made the statements at issue is inconsequential. "It is well settled thatwhere a person in police custody has been issued Miranda warnings and voluntarily andintelligently waives [his or her Miranda] rights, it is not necessary to repeat the warningsprior to subsequent questioning within a reasonable time thereafter, so long as the custody hasremained continuous" (People v Glinsman, 107 AD2d 710, 710 [1985], lv denied64 NY2d 889 [1985], cert denied 472 US 1021 [1985]; see People v Peterkin, 89 AD3d1455 [2011]; Jacobson, 60 AD3d at 1327).[*2]
Defendant further contends that one of his statements tothe police was involuntary inasmuch as it was obtained as a result of police deception, i.e., theuse of a videotape as a prop, and as a result of the conduct of the police in attempting tocapitalize 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 withoutsome showing that the deception was so fundamentally unfair as to deny due process or that apromise or threat was made that could induce a false confession' " (People v Dishaw, 30 AD3d 689,690 [2006], lv denied 7 NY3d 787 [2006], quoting People v Tarsia, 50 NY2d 1,11 [1980]). Under the circumstances of this case, the fact that the police used a videotape as aprop does not warrant suppression (see id. at 690-691). Moreover, although threats by thepolice to arrest a person's loved ones may result in suppression (see People v Keene, 148AD2d 977, 978-979 [1989]), "[i]t is not an improper tactic for police to capitalize on adefendant's sense of shame or reluctance to involve his [loved ones] in a pending investigationabsent circumstances [that] create a substantial risk that a defendant might falsely incriminatehimself [or herself]" (People vBalkum, 71 AD3d 1594, 1597 [2010], lv denied 14 NY3d 885 [2010] [internalquotation marks omitted]). Here, there is no evidence "that the police promised not to arrestdefendant's girlfriend if defendant talked . . . , and there were no othercircumstances 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 hisinterrogation negated the voluntariness of his statements to the police. The length of aninterrogation does not necessarily render a statement obtained during that time involuntary, andthere is no evidence here that the duration of defendant's interviews with the police, which wenote totaled approximately four hours over a six-hour time period, contributed to the statementsin question (see e.g. People vMcWilliams, 48 AD3d 1266, 1267 [2008], lv denied 10 NY3d 961 [2008]; People v Weeks, 15 AD3d 845,846-847 [2005], lv denied 4 NY3d 892 [2005]). In any event, we conclude that any errorin the admission in evidence of the statements in question is harmless (see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant further contends that the court erred in refusing to suppress an eyewitnessidentification of him from a photo array because the witness was shown a prior photo array thatalso contained defendant's photograph. Even assuming, arguendo, that defendant's contention ispreserved for our review, we conclude that it is without merit. " 'Multiple photo identificationprocedures are not inherently suggestive' " (People v Dickerson, 66 AD3d 1371, 1372 [2009], lv denied13 NY3d 859 [2009]). "While 'the inclusion of a single suspect's photograph in successive arraysis not a practice to be encouraged' " (People v Beaty, 89 AD3d 1414, 1415 [2011]), an "identification[is] not rendered unduly suggestive merely because the witness was shown more than one photoarray 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 thesame sequence in each photo array, the record establishes that different photographs of defendantwere used in each presentation to the witness (see id.), that there was a two-day lapse oftime between the presentations (see generally id.; People v Quinones, 228 AD2d796, 796-797 [1996]), and that the witness appears to have identified defendant after the policeaddressed her fears with respect to the safety of her family. Considering the circumstances of thephoto arrays, we conclude that there is nothing unduly suggestive in the procedure used toidentify defendant as the shooter in the second incident (see generally Dickerson, 66AD3d at 1372).
Defendant failed to preserve for our review his contention that the murder conviction is notsupported by legally sufficient evidence (see People v Hawkins, 11 NY3d 484, 492 [2008]; People vGray, 86 NY2d 10, 19 [1995]) and, in any event, that contention lacks merit. Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we conclude that defendant's intent to kill the victim was inferable from hisconduct, i.e., approaching and [*3]shooting the victim in thestomach and chest at close range (seePeople v Green, 74 AD3d 1899, 1900 [2010], lv denied 15 NY3d 852 [2010];People v Colon, 275 AD2d 797 [2000], lv denied 95 NY2d 904 [2000]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crime of murder in the second degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict with respect tothat 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 ofthe two trials] did not constitute ineffective assistance of counsel inasmuch as defendant failed todemonstrate 'that the expert's testimony would have assisted the trier of fact or that defendant wasprejudiced by the absence of such testimony' " (People v Powell, 81 AD3d 1307, 1307 [2011], lv denied 17NY3d 799 [2011]; see People vLoret, 56 AD3d 1283 [2008], lv denied 11 NY3d 927 [2009]). "[W]ith respectto defendant's challenge to the sentence imposed, along with an alleged trial tax imposed by thecourt, we note that [t]he mere fact that a sentence imposed after trial is greater than that offeredin connection with plea negotiations is not proof that defendant was punished for asserting hisright to trial . . . Indeed, the record here shows no retaliation or vindictivenessagainst the defendant for electing to proceed to trial" (People v Russell, 83 AD3d 1463, 1465 [2011], lv denied 17NY3d 800 [2011] [internal quotation marks omitted]). The sentence is not unduly harsh orsevere.
Defendant's remaining contentions are raised in his pro se supplemental brief. Defendantcontends that the court erred in admitting in evidence the statement of the murder victim to apolice 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 thestatement was made (see People vJones, 66 AD3d 1442 [2009], lv denied 13 NY3d 939 [2010]). Defendant'sfurther contention "that he was denied his right to testify before the [g]rand [j]ury is based onmaterial 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 CPL190.50 (5) (c)" (People v Sachs, 280 AD2d 966, 966 [2001], lv denied 96 NY2d834 [2001], 97 NY2d 708 [2002]). Finally, we reject the contention of defendant that he wasdenied a prompt preliminary hearing. " '[T]here is no constitutional or statutory right to apreliminary hearing . . . , nor is it a jurisdictional predicate to indictment' " (People v Caswell, 56 AD3d 1300,1302 [2008], lv denied 11 NY3d 923 [2009], 12 NY3d 781 [2009], cert denied556 US 1286 [2009]). Even assuming, arguendo, that defendant was entitled to be releasedon his own recognizance based on the court's failure to afford him a preliminary hearing, weconclude that such failure does not require dismissal of the indictment or a new trial (seePeople v Bensching, 117 AD2d 971 [1986], lv denied 67 NY2d 939 [1986]; seealso People v Russ, 292 AD2d 862 [2002], lv denied 98 NY2d 713 [2002], 99 NY2d539 [2002]). Present—Centra, J.P., Fahey, Peradotto, Carni and Lindley, JJ.