Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Damone LEWIS, also known as "Mone", also known as "D", Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Damone Lewis, Defendant–Appellant pro se. John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.Damone Lewis, Defendant–Appellant pro se.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
Memorandum:
Defendant was indicted on a series of five charges arising from two separate shooting incidents occurring in August 2012, and he appeals from the judgment convicting him of those charges. With respect to the first two counts of the indictment, defendant was convicted following a jury trial in Supreme Court (Wolfgang, J.) of murder in the second degree ( Penal Law § 125.25[1] ), and criminal possession of a weapon in the second degree (§ 265.03[3] ), arising from an incident in which he shot a man to death in return for money. With respect to the last three counts of the indictment, defendant was convicted upon his plea of guilty in County Court (DiTullio, J.) of attempted murder in the second degree ( §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ), and an additional count of criminal possession of a weapon in the second degree (§ 265.03[3] ), arising from an incident in which he shot a 15–year–old because she was in a fight with defendant's girlfriend.
With respect to the counts of the indictment of which he was convicted after trial, defendant contends that the evidence is legally insufficient to support the conviction and that the verdict is contrary to the weight of the evidence, primarily based on his challenge to the credibility of the witnesses regarding the identity of the perpetrator. Even assuming, arguendo, that defendant preserved his challenge for our review (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ), we reject that challenge. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to support the conviction with respect to both charges (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is contrary to the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). With respect to the credibility of the witnesses, we conclude that their testimony "was not so inconsistent or unbelievable as to render it incredible as a matter of law" ( People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 ). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses" ( People v. Hernandez, 288 A.D.2d 489, 490, 733 N.Y.S.2d 886, lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 ; see People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 ), and we see no basis for disturbing the jury's credibility determinations in this case.
Defendant failed to preserve for our review his further contention in his main and supplemental pro se briefs that the prosecutor engaged in prosecutorial misconduct on summation (see People v. Paul, 78 A.D.3d 1684, 1684–1685, 911 N.Y.S.2d 757, lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 199, 946 N.E.2d 187 ; People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 ). In any event, the comments at issue were within " ‘the broad bounds of rhetorical comment permissible’ " during summations ( People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588, quoting People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ), and were " ‘either a fair response to defense counsel's summation or fair comment on the evidence’ " ( People v. Green, 60 A.D.3d 1320, 1322, 875 N.Y.S.2d 390, lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 ; see People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249, lv. denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 ). Furthermore, "[d]efendant was not denied effective assistance of counsel based on defense counsel's failure to object to the allegedly improper comments by the prosecutor on summation inasmuch as those comments did not constitute prosecutorial misconduct" ( People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688, lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804 ; see People v. Martin, 114 A.D.3d 1154, 1155, 979 N.Y.S.2d 894, lv. denied 23 N.Y.3d 964, 988 N.Y.S.2d 572, 11 N.E.3d 722 ).
Defendant also failed to preserve for our review his contention that the court (Wolfgang, J.) "deprived him of a fair trial by ... improperly influencing the jury to rush in its deliberation" ( People v. Farnham, 136 A.D.3d 1215, 1217, 26 N.Y.S.3d 378, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77, citing People v. Charleston, 56 N.Y.2d 886, 888, 453 N.Y.S.2d 399, 438 N.E.2d 1114 ; see generally People v. Pryor, 48 A.D.3d 1217, 1218, 851 N.Y.S.2d 801, lv. denied 10 N.Y.3d 868, 860 N.Y.S.2d 495, 890 N.E.2d 258 ). We reject defendant's contention that the court thereby committed a mode of proceedings error (see generally People v. Kelly, 16 N.Y.3d 803, 804, 921 N.Y.S.2d 640, 946 N.E.2d 738 ; People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
With respect to the final three counts of the indictment, defendant contends that his waiver of the right to appeal is invalid because the court (DiTullio, J.) failed to differentiate the terms of the plea from those involving an earlier plea that had been withdrawn upon defendant's motion. That contention is without merit. It is well settled that "a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). Here, "[c]ontrary to defendant's contention, the record establishes that he knowingly, voluntarily, and intelligently waived the right to appeal" ( People v. Bones, 148 A.D.3d 1793, 1793, 49 N.Y.S.3d 335 ). That valid waiver is a "general unrestricted waiver" that encompasses his contention that the sentence on the final three counts of the indictment is unduly harsh and severe ( People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Finally, defendant contends that the sentence on the first two counts of the indictment is unduly harsh and severe. Contrary to defendant's contention, we perceive "nothing in the record to persuade us that [the c]ourt failed to consider the mitigating factors presented to it when imposing sentence" ( People v. Ormsby, 242 A.D.2d 840, 840–841, 662 N.Y.S.2d 619, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 10, 691 N.E.2d 1036, reconsideration denied 91 N.Y.2d 975, 672 N.Y.S.2d 855, 695 N.E.2d 724 ). Furthermore, contrary to the People's contention, it is well settled that our " sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court" ( People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; see Lopez, 6 N.Y.3d at 260 n. 5, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Consequently, we may "substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" ( People v. Smart, 100 A.D.3d 1473, 1475, 954 N.Y.S.2d 322, affd. 23 N.Y.3d 213, 989 N.Y.S.2d 631, 12 N.E.3d 1061 [internal quotation marks omitted]; see People v. Johnson, 136 A.D.3d 1417, 1418, 25 N.Y.S.3d 510, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.