People v. Lewis

• Decision Date: 15 November 2019
• Docket Number: 819,KA 16–02164
• Citation: 177 A.D.3d 1351,113 N.Y.S.3d 439
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert D. LEWIS, Sr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1351

113 N.Y.S.3d 439

The PEOPLE of the State of New York, Respondent,

v.Robert D. LEWIS, Sr., Defendant–Appellant.

819

KA 16–02164

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

Entered: November 15, 2019

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT–APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree ( Penal Law § 120.10 [1] ). The conviction arises from an incident on May 21, 2014 in Geneva, New York, in which defendant struck the victim repeatedly with a metal pipe. Defendant fled the scene, and ensuing efforts by members of law enforcement to find him proved unsuccessful. A warrant was issued for defendant's arrest, and he was eventually located in September 2015 in Detroit, Michigan. Defendant was then arrested and extradited to New York for prosecution.

Contrary to defendant's contention, County Court properly determined that his statutory right to a speedy trial was not violated. Where, as here, a defendant is charged with a felony, the People must announce readiness for trial within six months of the commencement of the action (see CPL 30.30[1][a] ; People v. Cortes, 80 N.Y.2d 201, 207 n. 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ). It is undisputed that the criminal action was commenced on May 22, 2014 with the filing of the felony complaint (see CPL 1.20[17] ; People v. Osgood, 52 N.Y.2d 37, 43, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980] ). Almost two years later, on February 5, 2016, an indictment was filed, at which time the People announced their readiness for trial. At the hearing on defendant's speedy trial motion, however, the People established that most of the prereadiness delay was excludable (see generally People v. Berkowitz, 50 N.Y.2d 333, 348–349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; People v. Gushlaw [appeal No. 2], 112 A.D.2d 792, 793, 492 N.Y.S.2d 292 [4th Dept. 1985], lv denied 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 [1985] ).

The evidence presented at the hearing established that, following the assault, members of law enforcement exhausted all investigative leads and made extensive efforts to find defendant prior to his apprehension in Michigan. The police searched for defendant at his last known address and other associated addresses in Ontario County, New York; Rochester, New York; Illinois; and Indiana. They also interviewed defendant's family members, friends and acquaintances; engaged fellow members of law enforcement from other jurisdictions to assist in the search; maintained periodic contact with defendant's children; searched local and national databases periodically for updated information on defendant's whereabouts; and monitored Facebook pages of defendant's family members and associates in an effort to find him. Meanwhile, defendant, who had been released from parole supervision a few months prior to the assault, was admittedly aware that the police were looking for him.

" ‘The police are not required to search for a defendant indefinitely’ " ( People v. Williams, 137 A.D.3d 1709, 1710, 27 N.Y.S.3d 781 [4th Dept. 2016] ; see People v. Butler, 148 A.D.3d 1540, 1541, 52 N.Y.S.3d 586 [4th Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017] ) and, even assuming, arguendo, that the People failed to establish due diligence in locating defendant, the law does not impose a due diligence obligation where, as here, the People establish that a defendant's "location is unknown and he is attempting to avoid apprehension or prosecution" ( CPL 30.30[4][c][i] ; see People v. Torres, 88 N.Y.2d 928, 931, 646 N.Y.S.2d 790, 669 N.E.2d 1112 [1996] ; People v. Devore, 65 A.D.3d 695, 696, 885 N.Y.S.2d 497 [2d Dept. 2009] ). Thus, the period of time from May 22, 2014 to September 1, 2015, the day before defendant's arrest in Michigan, was properly excluded by the court from the speedy trial calculation (see generally People v. Luperon, 85 N.Y.2d 71, 77, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995] ).

In addition, the time from defendant's refusal to waive extradition until the time when he was returned to New York, i.e., September 2, 2015 to December 15, 2015, was properly charged to defendant (see CPL 30.30[4][e] ). Furthermore, the period from January 19, 2016 through January 28, 2016, was properly charged to defendant because he waived his speedy trial rights pursuant to CPL 30.30 with respect to that period, in exchange for which the People agreed to postpone their grand jury presentation in order to accommodate defendant's request to testify before the grand jury (see People v. Waldron, 6 N.Y.3d 463, 467–468, 814 N.Y.S.2d 70, 847 N.E.2d 367 [2006] ; People v. Wheeler, 159 A.D.3d 1138, 1141, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ). Thus, after taking into consideration excludable periods of time, we conclude that the People announced readiness for trial well within the statutory six-month time frame (see People v. Harrison, 171 A.D.3d 1481, 1482, 99 N.Y.S.3d 158 [4th Dept. 2019] ).

Contrary to defendant's additional contention, viewing the evidence in the light most favorable to the People, we conclude that "there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted] ). The trial evidence was legally sufficient to establish that the victim suffered serious physical injury inasmuch as he lost consciousness and sustained a large laceration to his head with heavy bleeding and a skull fracture

, which resulted in a permanent skull depression and years of debilitating headaches (see

People v. Robinson, 121 A.D.3d 1405, 1407, 995 N.Y.S.2d 372 [3d Dept. 2014], lv denied 24 N.Y.3d 1221, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ; People v. Casey, 61 A.D.3d 1011, 1012–1013, 876 N.Y.S.2d 532 [3d Dept. 2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ; People v. Romer, 163 A.D.2d 880, 880, 558 N.Y.S.2d 406 [4th Dept. 1990], lv denied 76 N.Y.2d 896, 561 N.Y.S.2d 558, 562 N.E.2d 883 [1990] ). Furthermore, defendant's intent to cause serious physical injury to the victim may be inferred from defendant's conduct in striking the victim's head with a metal pipe (see

People v. Pine, 82 A.D.3d 1498, 1500, 919 N.Y.S.2d 564 [3d Dept. 2011], lv denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011], reconsideration denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), and according deference to the jury's credibility determinations (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict is not 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] ; People v. Haynes, 39 A.D.3d 562, 563, 833 N.Y.S.2d 193 [2d Dept. 2007], lv. denied 9 N.Y.3d 845, 840 N.Y.S.2d 771, 872 N.E.2d 884 [2007] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot say that "the jury failed to give the evidence the weight it should be accorded" ( People v. Jackson, 162 A.D.3d 1567, 1567, 78 N.Y.S.3d 574 [4th Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant also contends that the verdict is repugnant inasmuch as the jury acquitted him of criminal possession of a weapon in the third degree ( Penal Law § 265.02[1] ) and convicted him of assault in the first degree ( § 120.10[1] ). We reject that contention. A repugnancy claim must be "[e]xamined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case" ( People v. Johnson, 70 N.Y.2d 819, 820, 523 N.Y.S.2d 434, 517 N.E.2d 1320 [1987] ; see People v. Muhammad, 17 N.Y.3d 532, 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ). "[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as...