THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMEL LYONS DEFENDANT APPELLANT (2026)

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 murder in the second degree (Penal Law § 125.25 [1]). Defendant contends that County Court erred in failing to suppress the identification of defendant made by a certain witness because the testimony at the Wade hearing did not establish that the identification of defendant by that witness was confirmatory (see generally People v Rodriguez, 79 NY2d 445, 450 [1992]; People v Colon, 196 AD3d 1043, 1045 [4th Dept 2021], lv denied 37 NY3d 1026 [2021]). We reject that contention inasmuch as that witness did not identify defendant through a single photo identification but rather identified him from a photo array (cf. People v Myles, 216 AD3d 1419, 1422 [4th Dept 2023], lv denied 40 NY3d 936 [2023]; see generally People v Johnston, 192 AD3d 1516, 1520 [4th Dept 2021], lv denied 37 NY3d 972 [2021]).

We reject defendant's contention that he was denied his right to confront one of the witnesses against him when the court received in evidence the witness's prior written statement and grand jury testimony. A witness's prior written statement and grand jury testimony may be admitted at trial on the People's direct case where “it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery” (People v Geraci, 85 NY2d 359, 365 [1995]; see People v Smart, 23 NY3d 213, 219-220 [2014]; People v Jackson, 225 AD3d 1136, 1137-1138 [4th Dept 2024], lv denied 42 NY3d 927 [2024]). Here, the court properly determined after a Sirois hearing that the People established by the requisite clear and convincing evidence that defendant “engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness's decision not to testify” (Smart, 23 NY3d at 220; see Jackson, 225 AD3d at 1138).

Within hours after defendant obtained paperwork naming the witness who had previously been the subject of a protective order, defendant's close friend and fellow incarcerated individual made repeated calls to the witness, who was the mother of his child, imploring her not to testify. He also called her multiple times on the day she was scheduled to testify. Although defendant contends that his friend attempted to stop the witness from testifying for the friend's own benefit, i.e., to protect his own reputation in the jail, the court properly inferred from the timing and substance of the conversations that the friend's primary motive was to protect defendant, his “right-hand man” (see generally People v Vernon, 136 AD3d 1276, 1277-1278 [4th Dept 2016], lv denied 27 NY3d 1076 [2016]).

Defendant's contention that the conviction is not supported by legally sufficient evidence is preserved only in part (see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, is without merit. We conclude that, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), “ ‘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 NY3d 342, 349 [2007]). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see id.), we conclude that, contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

We reject defendant's contention that he was denied effective assistance of counsel. Inasmuch as the evidence is legally sufficient to support the murder conviction, defense counsel's failure to raise certain arguments in the trial order of dismissal motion does not constitute ineffective assistance (see People v Broomfield, 134 AD3d 1443, 1444-1445 [4th Dept 2015], lv denied 27 NY3d 1129 [2016]; see generally People v Caban, 5 NY3d 143, 152 [2005]; People v Myers, 87 AD3d 826, 828-829 [4th Dept 2011], lv denied 17 NY3d 954 [2011]). Finally, the sentence is not unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court