People v. Lewis

• Decision Date: 02 December 2020
• Docket Number: 2016–12489,Ind. No. 263/15
• Parties: The PEOPLE, etc., Respondent, v. Marcus S. LEWIS, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 887
136 N.Y.S.3d 424

The PEOPLE, etc., Respondent,
v.
Marcus S. LEWIS, Appellant.

2016–12489
Ind. No. 263/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 21, 2020
December 2, 2020

136 N.Y.S.3d 425

Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant, and appellant pro se.

Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered November 9, 2016, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with murder in the second degree arising out of a shooting that occurred in September, 2010. The trial evidence established, inter alia, that on the night of the incident, both the victim and the defendant were present in a strip club in West Babylon. According to the testimony of a witness, the victim left

136 N.Y.S.3d 426

the club along with a friend, and they walked to an adjacent gas station convenience store. Moments after the victim left the club, the defendant left the club along with a female companion, and they entered a car that a witness identified as the defendant's vehicle, with the defendant in the driver's seat. The defendant drove to the parking lot of the gas station, and then reversed and parked on the road in front of the club. This sequence of events was also captured on a surveillance video from the gas station, which was introduced into evidence at trial.

As per eyewitness testimony and the surveillance video, the victim then approached the driver's side of the defendant's vehicle. The surveillance video next showed a flash of light and, immediately thereafter, the defendant's vehicle fled the scene, leaving the body of the victim lying nearby. The jury found the defendant guilty of murder in the second degree. We affirm.

The defendant has failed to preserve for appellate review his contention regarding the alleged insufficient CPL 710.30(1) notice that was provided by the People with regard to a spontaneous statement he made which was recorded on video (see CPL 470.05[2] ; People v. Davis, 118 A.D.3d 1264, 1266, 987 N.Y.S.2d 537 ). In any event, the record establishes that a videotape which included the disputed statement was annexed to the People's timely CPL 710.30(1) notice sent to the defendant, providing him with sufficient notice of the statement (see People v. Wallace, 128 A.D.3d 866, 866–867, 7 N.Y.S.3d 610 ; People v. Mais, 71 A.D.3d 1163, 1166, 897 N.Y.S.2d 716 ).

Similarly, the County Court did not err in finding that the videotape was sufficiently audible to be admissible, and that any purported deficiencies in the audibility of portions of the tape went to the weight of that evidence (see People v. Perez, 165 A.D.3d 1294, 1295, 84 N.Y.S.3d 811 ; People v. McCaw, 137 A.D.3d 813, 815, 27 N.Y.S.3d 574 ). In addition, the court appropriately instructed the jurors that it was their interpretation of what was said on the videotape that controlled.

Contrary to the defendant's contention, the County Court properly admitted at trial certain evidence of alleged "prior bad acts" by the defendant. Evidence of uncharged crimes is inadmissible when it is proffered solely to establish an accused's propensity to commit a crime (see People v. Agina, 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913 ; People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 ). However, such evidence may be received to establish an element of the charged crime, or because it is relevant to some other material issue in the case (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Alvino, 71 N.Y.2d at 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 ; People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915 ). Evidence of prior uncharged crimes may also be used, among other purposes, to "provide[ ]...