| People v Lewis |
| 2017 NY Slip Op 04296 [150 AD3d 1264] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Lewis, Appellant. |
Gary E. Eisenberg, New City, NY, for appellant.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly,J.), rendered February 14, 2014, convicting him of attempted murder in the second degree andassault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Fisch, J.H.O.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence, his statements to law enforcement officials, andidentification testimony.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence, his statements to law enforcement officials, and identificationtestimony on the ground that his arrest was made without probable cause. Contrary to thedefendant's contention, the detectives who ultimately arrested the defendant had a foundedsuspicion that criminality was afoot, triggering a common-law right of inquiry when they initiallyapproached the defendant (see People v De Bour, 40 NY2d 210, 223 [1976]; People v Bolta, 96 AD3d 773, 774[2012]). Additionally, under the circumstances of this case, when the detectives stood in thedefendant's path on the sidewalk, that did not constitute a seizure or pursuit requiring reasonablesuspicion (see People v Bora, 83 NY2d 531, 535-536 [1994]; People v Shankle, 37 AD3d 742,743 [2007]; People v Foster, 302 AD2d 403, 404 [2003]). The defendant's subsequentaction in pushing one of the detectives gave the detectives probable cause to arrest him (see People v Couch, 104 AD3d955, 956 [2013]). Moreover, since the defendant did not seek to reopen the suppressionhearing based on the trial testimony, or move for a mistrial, the question of whether the trialtestimony undermined the hearing court's determination is not properly before this Court (see People v Bajana, 82 AD3d1111 [2011]; People v Moss, 67AD3d 1027 [2009]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions because the prosecution failed to establish his identity as the perpetrator of thosecrimes is without merit. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), it was legally sufficient to establish thedefendant's identity beyond a reasonable doubt (see People v Thomas, 146 AD3d 991, 992 [2017]; People v Delgado, 109 AD3d 483[2013]). Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the [*2]evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant contends that the Supreme Court erred in giving additional examples of theelement of intent in its response to the jury's request for a readback and explanation of the chargeon attempted murder in the second degree. The defendant failed to preserve this contention forappellate review, because he failed to object to the court's response or suggest an appropriateresponse to the jury note (see CPL 470.05 [2]; People v Wiggs, 28 NY3d 987, 989 [2016]; People v Mack, 27 NY3d 534, 537[2016]; People v Nealon, 26 NY3d152, 160 [2015]; People vTyler, 43 AD3d 633, 634 [2007]). In any event, the court responded meaningfully to thejury's inquiry (see CPL 310.30; People v Almodovar, 62 NY2d 126, 131 [1984];People v Malloy, 55 NY2d 296, 301 [1982]; People v Gonzalez, 293 NY 259,262 [1944]), and the additional examples of the element of intent did not seriously prejudice thedefendant such that he was deprived of a fair trial (see People v Jackson, 20 NY2d 440,454-455 [1967]; People v Cooke, 292 NY 185, 188 [1944]).
The defendant's contention that certain comments made by the prosecutor during summationwere improper and deprived him of a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]; People v Williams,146 AD3d 906, 910 [2017]; Peoplev McMillan, 130 AD3d 651, 654 [2015], affd — NY3d &mdash, 2017NY Slip Op 03446 [2017]; People vJohnson, 127 AD3d 1234, 1234 [2015]). In any event, the challenged remarks were faircomment on the evidence and the reasonable inferences to be drawn therefrom, were a fairresponse to arguments and issues raised by the defense, and did not deprive the defendant of afair trial (see People v Williams, 146 AD3d at 910; People v Hawley, 112 AD3d 968, 969 [2013]; People v McGowan, 111 AD3d850, 851 [2013]).
The defendant's claim that he was deprived of the right to the effective assistance of counselis based, in part, on matter appearing on the record and, in part, on matter outside the record, andthus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it isnot evident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel (seePeople v Granger, 122 AD3d 940, 942 [2014]; cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claim ofineffective assistance cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805 [2012]; People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Austin, Miller and Barros, JJ., concur.