Opinion
245 KA 19-02255
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Nahkeen LEWIS-BUSH, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences on all counts shall run concurrently with respect to each other, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ), attempted assault in the first degree ( §§ 110.00, 120.10 [1] ), and six counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Defendant's conviction stems from his conduct in driving a vehicle in which the codefendants were passengers and parking that vehicle near a gas station, where he waited while the codefendants exited the vehicle, walked to the gas station, and opened fire on a vehicle that was parked there with the driver inside. When the codefendants ran back to defendant's vehicle, police officers in a nearby patrol car quickly apprehended defendant and the codefendants.
Defendant contends that County Court failed to perceive its discretion under CPL 210.20 (4) when it granted the People's request to resubmit the matter to a second grand jury. Defendant failed to preserve that contention for our review (see CPL 470.15 [6] [a] ), and we conclude that it is without merit in any event (see generally People v. Lewis , 138 A.D.3d 1495, 1495-1496, 30 N.Y.S.3d 475 [4th Dept. 2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ). Although the court cited to an incorrect statute in granting the People's motion, the order shows that the court was aware that it had the discretion to grant or deny the motion. We reject defendant's further contention that the prosecutor's opening statement was deficient. The opening statement "sufficiently set forth the charges and facts that the People expected to prove" ( People v. Manchester , 123 A.D.3d 1285, 1288, 999 N.Y.S.2d 567 [3d Dept. 2014], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ; see People v. Kurtz , 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699 [1980], cert denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301 [1981] ; People v. Nuffer , 70 A.D.3d 1299, 1300, 894 N.Y.S.2d 698 [4th Dept. 2010] ).
Defendant contends that the evidence is legally insufficient because the People failed to establish that he shared a community of purpose with the codefendants, who were the actual shooters, and failed to establish that the victim was the intended target. Defendant's latter contention is not preserved for our review because he did not raise that ground in support of his motion for a trial order of dismissal (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Carpenter , 187 A.D.3d 1556, 1557-1558, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ), and we otherwise reject his contention. Surveillance video showed defendant driving into the gas station at the same time that the victim entered that same gas station from another entrance. Defendant drove his vehicle slowly past a gas pump and exited the lot, then drove the vehicle to an adjacent street and stopped the vehicle abruptly, just past the station. Defendant never put the vehicle in park as he waited for the codefendants to return to the vehicle. 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 [1983] ), we conclude that the evidence is legally sufficient to establish that defendant was a knowing accomplice to the attempted murder of the victim (see People v. McGee , 87 A.D.3d 1400, 1401-1402, 930 N.Y.S.2d 117 [4th Dept. 2011], affd 20 N.Y.3d 513, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; People v. Griffin , 145 A.D.3d 1551, 1552, 46 N.Y.S.3d 319 [4th Dept. 2016] ; see generally People v. Scott , 25 N.Y.3d 1107, 1109-1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 [2015] ). 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 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant next contends that the court erred in denying his request for a missing witness charge with respect to the victim. "A missing witness charge is appropriate when three conditions are met. First, the witness's knowledge must be material to the trial ... Second, the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought ... Third, the witness must be available to that party" ( People v. Smith , 33 N.Y.3d 454, 458, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] [internal quotation marks omitted]). Here, defendant met his initial burden of demonstrating "(1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party has failed to call the witness to testify" ( id. at 458-459, 104 N.Y.S.3d 572, 128 N.E.3d 649 [internal quotation marks omitted]). The People, however, established that the charge "would not be appropriate" because the witness was unavailable ( id. at 459, 104 N.Y.S.3d 572, 128 N.E.3d 649 ; see People v. Mayes , 200 A.D.3d 718, 719, 154 N.Y.S.3d 856 [2d Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 35, 184 N.E.3d 856 [2022] ; see generally People v. Gonzalez , 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ). The People explained that they had intended to call the victim as a witness, but he did not appear at trial as scheduled. The court granted the People an adjournment and issued a material witness warrant. At the adjourned date, the People set forth their attempts to locate the victim, which were unsuccessful. The court determined that the People had exercised due diligence, and we conclude that the court did not err in denying defendant's request (see People v. Williams , 94 A.D.3d 1555, 1556, 943 N.Y.S.2d 714 [4th Dept. 2012] ; People v. Mobley , 77 A.D.3d 488, 489, 908 N.Y.S.2d 686 [1st Dept. 2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 114, 942 N.E.2d 325 [2010] ).
Defendant contends that he was denied effective assistance of counsel because defense counsel failed to call certain witnesses who would have provided exculpatory testimony. We reject that contention. The record supports the conclusion that defense counsel had strategic and legitimate reasons for not calling those witnesses inasmuch as there were concerns with respect to their credibility (see People v. Addison , 199 A.D.3d 1321, 1325, 157 N.Y.S.3d 214 [4th Dept. 2021] ; see generally People v. Nicholson , 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we further conclude, contrary to the remaining claims of ineffective assistance of counsel raised by defendant, that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant contends that the court failed to make a sufficient inquiry regarding an actual conflict of interest, which defendant did not waive, with respect to the representation of the victim by the same attorney who represented defendant during posttrial proceedings. Contrary to defendant's contention, there existed in this case only a potential conflict of interest, not an actual conflict of interest (see generally People v. Sanchez , 21 N.Y.3d 216, 222-223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ; People v. Solomon , 20 N.Y.3d 91, 97-98, 956 N.Y.S.2d 457, 980 N.E.2d 505 [2012] ). That attorney was not assigned to represent defendant in this matter until after the conclusion of defendant's trial, and there was no indication that the attorney was still representing the victim at that time. With respect to the potential conflict of interest, defendant failed to establish that the potential conflict "actually operated on the defense" ( Sanchez , 21 N.Y.3d at 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; see People v. McCutcheon , 109 A.D.3d 1086, 1087, 971 N.Y.S.2d 609 [4th Dept. 2013], lv denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ; People v. Lewis , 97 A.D.3d 1097, 1098, 947 N.Y.S.2d 745 [4th Dept. 2012], lv denied 19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ), and thus reversal is not required.
Defendant contends that the court erred in failing to hold a hearing on his CPL 330.30 (1) motion to set aside the verdict on the ground of ineffective assistance of counsel. We reject that contention. Defendant's allegations in his motion papers concerned matters outside the record, and the court "lacked the authority to consider facts not appearing on the record" in determining the motion ( People v. Green , 92 A.D.3d 894, 896, 939 N.Y.S.2d 487 [2d Dept. 2012], lv denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ; see People v. Hardy , 49 A.D.3d 1232, 1233, 856 N.Y.S.2d 324 [4th Dept. 2008], affd 13 N.Y.3d 805, 890 N.Y.S.2d 372, 918 N.E.2d 884 [2009] ).
Finally, we agree with defendant that the sentence is unduly harsh and severe, particularly considering the disparity between the plea offer and the sentence received. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that all of the sentences shall run concurrently with each other (see CPL 470.15 [6] [b] ).