People v. Lewis

• Decision Date: 13 September 1990
• Citation: 165 A.D.2d 901,560 N.Y.S.2d 512
• Parties: The PEOPLE of the State of New York, Respondent, v. Owen LEWIS, III, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 512

560 N.Y.S.2d 512

165 A.D.2d 901

The PEOPLE of the State of New York, Respondent, v. Owen LEWIS, III, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 13, 1990.

Martin Cirincione, Schenectady, for appellant.

Robert M. Carney, Dist. Atty. (Philip W. Mueller, of counsel), Schenectady, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, LEVINE and MERCURE, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered December 18, 1987, upon a verdict convicting defendant of the crime of criminally negligent homicide.

On September 14, 1986 Philip Borutta was walking alone on Paige Street in the City of Schenectady, Schenectady County, when he was confronted and attacked by defendant without provocation. As a result of the punches to the face, the victim was knocked down, struck his head on the pavement and was rendered unconscious. Borutta died of massive head injuries and complications without ever regaining consciousness. Defendant appeals his conviction for criminally negligent homicide contending that his acts did not create a substantial and unjustifiable risk of death and did not constitute a gross deviation from the standard of conduct or care that a reasonable person would observe in such a situation (see, Penal Law §§ 125.10, 15.05[4].

On an appeal from a verdict of guilty, the trial evidence must be viewed in a light most favorable to the People and it must be presumed that the jury credited the People's witnesses (People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Lyng, 154 A.D.2d 787, 789, 546 N.Y.S.2d 464, lv. denied 74 N.Y.2d 950, 550 N.Y.S.2d 284, 549 N.E.2d 486; People v. Scallero, 122 A.D.2d 350, 352, 504 N.Y.S.2d 318). It was within the province of the jury to accept or reject conflicting proof (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Babala, 154 A.D.2d 727, 729, 547 N.Y.S.2d 683, lv. denied 75 N.Y.2d 810, 552 N.Y.S.2d 560, 551 N.E.2d 1238). Defendant contended that there was only one blow and that the victim, after agreeing to leave the area, fell backward while backing away from defendant. However, ample evidence was presented which demonstrated that defendant engaged in criminally culpable risk-creating conduct creating or contributing to a substantive and unjustified risk of death more than sufficient to establish the crime of criminally negligent homicide (see, People v. Boutin, 75 N.Y.2d 692, 696-697, 556 N.Y.S.2d 1, 555 N.E.2d 253; see also, People v. Paul V.S., 75 N.Y.2d 944, 555 N.Y.S.2d 685, 554 N.E.2d 1273; People v. Graham, 122 A.D.2d 345, 504 N.Y.S.2d 617, lv. denied 68 N.Y.2d 914, 508 N.Y.S.2d 1035, 501 N.E.2d 608). Defendant attacked a passive victim with multiple blows to the head, knocking the victim down and rendering him unconscious. Thereafter defendant laughingly left the unconscious victim unattended on the curb, coming back only to strike him on the head with a knife butt.

We also reject defendant's characterization of trial delay as a constitutional deprivation of his right to a speedy trial. Defendant was arrested on September 26, 1986 and the trial began on November 2, 1987. He had been arraigned on an indictment charging manslaughter in the first degree and assault in the first degree on November 10, 1986, at which time the People announced their trial readiness. Defendant was granted 45 days for motions and on December 24, 1986 did make an omnibus motion. The record shows that most of the delay chargeable to defendant was caused by the omnibus motion and adjournments relating to plea negotiations and retention of new defense counsel. While several months can be attributed to the court, most of such delay was beyond the control of the People (see, People v. Watts, 57 N.Y.2d 299, 302-303, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. O'Shaughnessy, 118 A.D.2d 876, 500 N.Y.S.2d 363, lv. denied 68 N.Y.2d 759, 506 N.Y.S.2d 1047, 497 N.E.2d 717). We find no impairment of the defense as a result of the delay.

Defendant next contends that County Court erred in its ruling on his Sandoval motion which permitted inquiry into his prior conviction for robbery in the second degree (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413). The prosecutor properly limited his inquiry to...