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
-2- 176 

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
-3- 176 

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
-4- 176 

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