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People v. Lewis

135 A.D.3d 961 Court N.Y. App. Div. Decision date 2016-01-27 English

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p. 961
The People of the State of New York, Respondent, v Kevin Lewis, Appellant.
[22 NYS3d 902]

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Hollie, J.), rendered December 4, 2012, convicting him of robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the fourth degree, under indictment No. 2162/10, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court (Kron, J.), rendered April 16, 2013, convicting him of grand larceny in the fourth degree, under indictment No. 897/13, upon his plea of guilty, and imposing sentence.

Ordered that the judgments are affirmed.

The defendant’s contention that certain counts of indictment No. 2162/10 were defective on the ground that they were duplicitous is unpreserved for appellate review (see CPL 470.15 [2]), as the defendant failed to make a pretrial motion to dismiss those counts of the indictment within 45 days of his arraignment (see CPL 210.20 [1], [2]; 255.20; People v Iannone,

p. 962
45 NY2d 589 , 600 [1978]; People v Booker, 63 AD3d 750 , 751 [2009]). The defendant’s contention that the court’s charge to the jury was inadequate on those same counts because the charge permitted alleged duplicitous convictions is also unpreserved for appellate review (see CPL 470.15 [2]; People v Mitchell, 10 NY3d 819 , 821 [2008]; People v Cona, 49 NY2d 26 , 33 [1979]; People v Booker, 63 AD3d at 751 ; People v White, 41 AD3d 1036 , 1037 [2007]). We decline to reach the issues of duplicitous counts in the interest of justice (see CPL 470.15 [6] [a]).

The defendant’s contention that he was deprived of a fair trial when the prosecutor was allowed to elicit testimony from a detective that the defendant was arrested as a result of two witnesses’ viewings of the lineup is also unpreserved for appellate review (see CPL 470.05 [2]; People v Love, 57 NY2d 1023 , 1025 [1982]; People v Ragsdale, 68 AD3d 897 [2009]; People v Moore, 49 AD3d 901 , 902 [2008]). In any event, any error did not deprive him of a fair trial. The defendant’s contention that he was deprived of the effective assistance of counsel because his attorney failed to object to the subject testimony is without merit (see generally People v Baldi, 54 NY2d 137 [1981]).

Inasmuch as the defendant raises no independent claim regarding his conviction under indictment No. 897/13, that judgment must be affirmed in light of the affirmance of the judgment on indictment No. 2162/10 (see People v Washington, 93 AD3d 681 , 682 [2012]; cf. People v Williams, 17 NY3d 834 , 836 [2011]; People v Pichardo, 1 NY3d 126 , 129 [2003]; People v Taylor, 80 NY2d 1 , 15 [1992]; People v Boston, 75 NY2d 585 , 589 [1990]; People v Fuggazzatto, 62 NY2d 862 , 863 [1984]). Hall, J.P., Austin, Roman and Barros, JJ., concur.

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