| People v Murphy |
| 2007 NY Slip Op 07136 [43 AD3d 1334] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RolandMurphy, Also Known as Roland Reddick, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), renderedNovember 15, 2004. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and attempted robbery in the first degree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]) and two counts ofattempted robbery in the first degree (§§ 110.00, 160.15 [1], [2]). Defendant failedto object to County Court's alleged failure to apply the appropriate legal standard in evaluatinghis Batson challenge at a time when the court could have remedied the perceived errorand thus failed to preserve his contention concerning that alleged failure for our review (see People v Benjamin, 35 AD3d1185 [2006], lv denied 8 NY3d 919 [2007]; People v Correa, 265 AD2d 488[1999], lv denied 94 NY2d 861 [1999]; People v Parks, 210 AD2d 437 [1994],lv denied 85 NY2d 941 [1995]). We decline to exercise our power to review defendant'scontention as a matter of discretion in the interest of justice (see Benjamin, 35 AD3d1185 [2006]; People v Strong, 17AD3d 1121, 1122 [2005], lv denied 5 NY3d 795 [2005]). We reject the furthercontention of defendant that he was denied effective assistance of counsel based upon defensecounsel's failure to challenge the legality of the warrantless arrest of defendant at his homepursuant to Dunaway v New York (442 US 200 [1979]) and Payton v New York(445 US 573 [1980]) when seeking suppression of defendant's statements to the police.Defendant failed to meet his burden of "demonstrat[ing] the absence of strategic or otherlegitimate explanations" for defense counsel's failure to do so (People v Garcia, 75 NY2d973, 974 [1990]). Finally, the sentence is not unduly harsh or severe. Present—Gorski,J.P., Smith, Centra, Fahey and Pine, JJ.