| People v Balenger |
| 2010 NY Slip Op 01091 [70 AD3d 1318] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eric Balenger,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedNovember 22, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree and assault in the second degree (two counts).
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 ofone count of robbery in the first degree (Penal Law § 160.15 [1]) and two counts of assaultin the second degree (§ 120.05 [2]). Defendant failed to preserve for our review hiscontention that he was denied a fair trial based on prosecutorial misconduct (see People v Douglas, 60 AD3d1377 [2009], lv denied 12 NY3d 914 [2009]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Contrary to defendant's further contention, neither defense counsel's failure toobject to the alleged instances of prosecutorial misconduct nor any of defense counsel's otheralleged shortcomings constituted ineffective assistance of counsel (see generally People v Walker, 50AD3d 1452, 1453 [2008], lv denied 11 NY3d 795 [2008], recons denied 11NY3d 931 [2009]). To the extent that defendant's contention is based on the alleged failure ofdefense counsel to advise defendant of his right to testify, that part of defendant's contentioninvolves matters outside the record on appeal and is thus properly raised by way of a motionpursuant to CPL article 440 (see Peoplev Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), and according great deference to the jury's resolution of credibility issues,we conclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Centra, Fahey and Green, JJ.