People v. Lewis

• Decision Date: 06 April 2010
• Parties: The PEOPLE, etc., respondent, v. Leo M. LEWIS, Jr., appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 232

72 A.D.3d 705

The PEOPLE, etc., respondent,

v.Leo M. LEWIS, Jr., appellant.

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

April 6, 2010.

James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Selha R. Abed on the brief), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

Appeal by the defendant from a judgment of the County Court, Rockland County (Alfieri, J.), rendered February 11, 2008, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of attempted murder in the second degree is unpreserved for appellate review, as defense counsel merely made a general motion for a trial order of dismissal of that charge based upon the People's alleged failure to make out a prima facie case ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Rudolph, 16 A.D.3d 1151, 1152, 791 N.Y.S.2d 253). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish his guilt of attempted murder in the second degree and both counts of criminal possession of a weapon in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt of attempted murder in the second degree and both counts of criminal possession of a weapon in the second degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). The jury could reasonably conclude that the defendant "engaged in conduct that came 'dangerously near' [the] commission of the completed crime" of murder in the second degree ( People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694, quotingPeople v. Acosta, 80 N.Y.2d 665, 670, 593 N.Y.S.2d 978, 609 N.E.2d 518 [internal quotation marks omitted]; see People v. German, 243 A.D.2d 647, 648, 663 N.Y.S.2d 259; People v. Gonzalez, 216 A.D.2d 412, 413, 628 N.Y.S.2d 726). The evidence established that the defendant fired a shot from a weapon which passed so close to the head of the intended victim that the intended victim felt as if her "ears exploded." Moreover, a witness who had a direct view of the incident testified that theintended victim and three people who were sitting near her "were immediately in front of" the defendant. In addition, the evidence established that the gun that the defendant fired was recovered by the police, and that what the defendant...