        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

176
KA 08-00131
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN R. LEWIS, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered January 4, 2008. The judgment convicted
defendant, upon jury verdicts, of murder in the second degree,
criminal possession of a weapon in the second degree (two counts),
criminal possession of a weapon in the third degree (two counts),
attempted murder in the second degree, assault in the first degree
(two counts), robbery in the first degree (two counts) and burglary in
the first degree (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 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 AD3d 1326, 1327, lv denied 12 NY3d 916). The fact that
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                                                         KA 08-00131

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 AD2d 710,
710, lv denied 64 NY2d 889, cert denied 472 US 1021; see People v
Peterkin, 89 AD3d 1455; Jacobson, 60 AD3d at 1327).

     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 AD3d 689, 690, lv denied 7 NY3d 787, quoting
People v Tarsia, 50 NY2d 1, 11). 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). Moreover, although threats
by the police to arrest a person’s loved ones may result in
suppression (see People v Keene, 148 AD2d 977, 978-979), “[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 AD3d 1594, 1597, lv denied 14 NY3d 885 [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 AD3d 1266, 1267, lv
denied 10 NY3d 961; People v Weeks, 15 AD3d 845, 846-847, lv denied 4
NY3d 892). 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 NY2d 230, 237).

     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
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                                                         KA 08-00131

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 AD3d 1371, 1372, lv denied 13
NY3d 859). “While ‘the inclusion of a single suspect’s photograph in
successive arrays is not a practice to be encouraged’ ” (People v
Beaty, 89 AD3d 1414, ___ ), 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 AD3d at 1372). 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 AD2d 796, 796-797), 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 AD3d at
1372).

     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 NY3d 484, 492; People v Gray, 86 NY2d 10,
19) and, in any event, that contention lacks merit. Viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), 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 AD3d 1899, 1900, lv denied 15 NY3d 852; People v
Colon, 275 AD2d 797, lv denied 95 NY2d 904; see generally People v
Bleakley, 69 NY2d 490, 495). 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 NY3d 342, 349), 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 NY2d at
495).

     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 AD3d 1307, 1307, lv denied 17 NY3d
799; see People v Loret, 56 AD3d 1283, lv denied 11 NY3d 927).
“[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 AD3d
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                                                         KA 08-00131

1463, 1465, lv denied 17 NY3d 800 [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 AD3d 1442, lv denied 13 NY3d 939).
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 AD2d
966, 966, lv denied 96 NY2d 834, 97 NY2d 708). 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 AD3d 1300, 1302, lv denied 11 NY3d
923, 12 NY3d 781, cert denied ___ US ___, 129 S Ct 2775). 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 AD2d 971, lv denied 67 NY2d 939; see also People v Russ, 292 AD2d
862, lv denied 98 NY2d 713, 99 NY2d 539).




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
