People v. Lewis

• Decision Date: 30 June 2015
• Docket Number: 2418/85, 15553, 15552
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth LEWIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 637
14 N.Y.S.3d 328
2015 N.Y. Slip Op. 05604

The PEOPLE of the State of New York, Respondent
v.
Kenneth LEWIS, Defendant–Appellant.

2418/85, 15553, 15552

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

June 30, 2015.

14 N.Y.S.3d 329

Ostrer & Associates, P.C., Chester (Benjamin Ostrer of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, CLARK, JJ.

Opinion

129 A.D.3d 637

Order, Supreme Court, Bronx County (Richard Lee Price, J.), entered on or about July 11, 2014, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered January 21, 1986, unanimously affirmed. Appeal from order (same court and Justice), entered on or about March 19, 2014, unanimously dismissed, as subsumed within the appeal from the July 11, 2014 order.

The court's summary denial of the motion (45 Misc.3d 396, 989 N.Y.S.2d 590 [Sup.Ct. Bronx County] ) was proper, because there was

129 A.D.3d 638

no factual dispute that was sufficient to warrant a hearing. Defendant's 1986 conviction arose from his arrest for possession of a revolver that was defaced, thereby constituting a nonviolent felony under Penal Law § 265.05(3), and that was also “loaded” in the sense of being accompanied by ammunition (see Penal Law § 265.00[15] ), thereby constituting a violent felony under former Penal Law § 265.05(4).

To the extent defendant is claiming that his 1986 conviction was not in fact a violent felony conviction, we note that defendant did not challenge the use of that conviction as a predicate violent felony at his 1990 adjudication as a second violent felony offender. Moreover, the 1986 conviction was similarly employed in adjudicating defendant a persistent violent felony offender in 2000, and this Court specifically upheld that...