Opinion
797 KA 19-00669
11-19-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LASHAWN LEWIS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered November 8, 2018. The judgment convicted defendant upon a jury verdict of murder in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]). We reject the contention of defendant in her main and pro se supplemental briefs that she was denied her state constitutional due process rights based upon the 12-year preindictment delay in this case (see generally People v Singer, 44 N.Y.2d 241, 253 [1978]). In determining that the People met their burden of establishing good cause for the delay in prosecuting defendant (see generally People v Decker, 13 N.Y.3d 12, 14 [2009]; Singer, 44 N.Y.2d at 254), Supreme Court properly applied the factors set forth in People v Taranovich (37 N.Y.2d 442 [1975]), i.e., "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (id. at 445). Although the length of the delay in this case weighs in defendant's favor, "it is well established that the extent of the delay, standing alone, is not sufficient to warrant a reversal" (People v McFadden, 148 A.D.3d 1769, 1771 [4th Dept 2017], lv denied 29 N.Y.3d 1093 [2017]; see People v Chatt, 77 A.D.3d 1285, 1285 [4th Dept 2010], lv denied 17 N.Y.3d 793 [2011]). Here, the People established at the Singer hearing that the District Attorney's Office brought charges after prosecutors uncovered a statement made by a crucial witness informing the police that defendant admitted committing the crime. The delay was in no part caused by any bad faith on the part of the People but, rather, was attributable to the mishandling of the witness's statement by the police department. Under these circumstances, we conclude that the People provided an" 'acceptable excuse or justification' for the delay" (McFadden, 148 A.D.3d at 1771; see People v Gaston, 104 A.D.3d 1206, 1206 [4th Dept 2013], lv denied 22 N.Y.3d 1156 [2014]). Furthermore, it is undisputed that the underlying charge is a serious offense and that defendant was not incarcerated during the delay, and "there is no indication that the defense was significantly impaired by the delay" (Decker, 13 N.Y.3d at 15; see People v Rogers, 103 A.D.3d 1150, 1151 [4th Dept 2013], lv denied 21 N.Y.3d 946 [2013]).
Defendant further contends in her main brief that the court erred in refusing to suppress statements that she made to the police in 2017 and certain evidence obtained thereafter on the ground that such statements and other evidence were obtained in violation of her indelible right to counsel. We reject that contention. Initially, as the People correctly concede, defendant's indelible right to counsel attached in 2005 when an attorney appeared in the case on defendant's behalf (see generally People v Grice, 100 N.Y.2d 318, 321 [2003]). "The mere passage of time is insufficient to eradicate the attorney-client relationship" (People v Felder, 301 A.D.2d 458, 459 [1st Dept 2003]), and it was the burden of the police "to determine whether the attorney-client relationship had terminated" when they spoke to defendant in 2017 (People v West, 81 N.Y.2d 370, 380 [1993]). Here, the People established at the Huntley hearing that the police met that burden inasmuch as the attorney who appeared in the case in 2005 told the District Attorney's Office and a homicide detective that he was no longer representing defendant, and defendant informed the police prior to making the statements in question that she was not represented by counsel (see People v Thorsen, 20 A.D.3d 595, 597 [3d Dept 2005], lv denied 5 N.Y.3d 810 [2005], reconsideration denied 5 N.Y.3d 857 [2005]; cf. Felder, 301 A.D.2d at 459).
Contrary to defendant's additional contention in her main brief, we conclude that the court did not abuse its discretion in denying her request for a Frye hearing on the admissibility of the testimony of a blood spatter analysis expert (see People v Barnes, 267 A.D.2d 1020, 1021 [4th Dept 1999], lv denied 95 N.Y.2d 832 [2000]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude, contrary to defendant's contention in her main and pro se supplemental briefs, that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). We further conclude, contrary to defendant's contention in her main brief, that defendant's sentence is not unduly harsh or severe.
We have considered the remaining contentions in defendant's main and pro se supplemental briefs and conclude that they are either unpreserved or without merit.