Opinion
2012-03-23
The PEOPLE of the State of New York, Respondent, v. Kevin R. LEWIS, Defendant–Appellant.
Lorenzo Napolitano, Rochester, for Defendant–Appellant. Kevin R. Lewis, Defendant–Appellant pro se.
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.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
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 A.D.3d 1326, 1327, 876 N.Y.S.2d 259, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078). The fact that 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 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621; see People v. Peterkin, 89 A.D.3d 1455, 932 N.Y.S.2d 639; Jacobson, 60 A.D.3d at 1327, 876 N.Y.S.2d 259).
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 A.D.3d 689, 690, 816 N.Y.S.2d 235, lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281, quoting People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188). 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, 816 N.Y.S.2d 235). Moreover, although threats by the police to arrest a person's loved ones may result in suppression ( see People v. Keene, 148 A.D.2d 977, 978–979, 539 N.Y.S.2d 214), “[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 A.D.3d 1594, 1597, 897 N.Y.S.2d 824, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [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 A.D.3d 1266, 1267, 852 N.Y.S.2d 523, lv. denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451; People v. Weeks, 15 A.D.3d 845, 846–847, 789 N.Y.S.2d 373, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982). 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 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
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 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 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98). “While ‘the inclusion of a single suspect's photograph in successive arrays is not a practice to be encouraged’ ” ( People v. Beaty, 89 A.D.3d 1414, 1415, 932 N.Y.S.2d 280), 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 A.D.3d at 1372, 887 N.Y.S.2d 387). 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 A.D.2d 796, 796–797, 644 N.Y.S.2d 365), 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 A.D.3d at 1372, 887 N.Y.S.2d 387).
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 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, that contention lacks merit. 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 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 A.D.3d 1899, 1900, 903 N.Y.S.2d 844, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821; People v. Colon, 275 A.D.2d 797, 713 N.Y.S.2d 738, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
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 A.D.3d 1307, 1307, 916 N.Y.S.2d 385, lv. denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102; see People v. Loret, 56 A.D.3d 1283, 867 N.Y.S.2d 649, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446). “[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 A.D.3d 1463, 1465, 919 N.Y.S.2d 721, lv. denied 17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [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 A.D.3d 1442, 885 N.Y.S.2d 822, lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919). 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 A.D.2d 966, 966, 721 N.Y.S.2d 214, lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215, 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312). 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 A.D.3d 1300, 1302, 867 N.Y.S.2d 638, lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442, 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092, cert. denied ––– U.S. ––––, 129 S.Ct. 2775, 174 L.Ed.2d 278). 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 A.D.2d 971, 499 N.Y.S.2d 522, lv. denied 67 N.Y.2d 939, 502 N.Y.S.2d 1031, 494 N.E.2d 116; see also People v. Russ, 292 A.D.2d 862, 739 N.Y.S.2d 512, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, 99 N.Y.2d 539, 752 N.Y.S.2d 600, 782 N.E.2d 578).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.