| People v Peters |
| 2011 NY Slip Op 09387 [90 AD3d 1507] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LuciousPeters, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedJanuary 10, 2007. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
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 ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]). The evidence,viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), is legally sufficient to support the conviction (see People v Roberts, 64 AD3d 796, 797 [2009]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Further, "inasmuch as our independentreview of the evidence reveals that a different verdict would have been unreasonable," weconclude that the verdict is not against the weight of the evidence (People v Johnson, 24 AD3d 803,804 [2005]; see generally Bleakley, 69 NY2d at 495). We reject defendant's contentionthat County Court erred in refusing to suppress the statements that he made to policeinvestigators. "The deception used by the police was not so fundamentally unfair as to deny[defendant] due process . . . , nor did it create a substantial risk that defendant mightfalsely incriminate himself" (People vKithcart, 85 AD3d 1558, 1559 [2011], lv denied 17 NY3d 818 [2011] [internalquotation marks omitted]). By failing to object to the court's ultimate Sandoval ruling,defendant failed to preserve for our review his further contention that such ruling constituted anabuse of discretion (see People vWalker, 66 AD3d 1331 [2009], lv denied 13 NY3d 942 [2010]), and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Insofar as the contention of defendant that he was deniedeffective assistance of counsel involves matters outside the record on appeal, it must be raised byway of a motion pursuant to CPL article 440 (see People v McKnight, 55 AD3d 1315, 1317 [2008], lvdenied 11 NY3d 927 [2009]). To the extent that defendant's contention is properly before us,we conclude that it is lacking in merit (see generally People v Baldi, 54 NY2d 137, 147[1981]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Green, Gorski and Martoche, JJ.