| People v Martin |
| 2014 NY Slip Op 00775 [114 AD3d 1154] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamarMartin, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Piotr Banasiak of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered October 25, 2010. The judgment convicted defendant, upon a jury verdict, ofhindering prosecution in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of hindering prosecution in the second degree (Penal Law § 205.60).Viewing the evidence in light of the elements of that crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]). Defendant's further contention that he was deprived of a fair trial bycertain remarks made by the prosecutor on summation is not preserved for our review(see CPL 470.05 [2]) and, in any event, that contention lacks merit. "Reversalbased on prosecutorial misconduct is 'mandated only when the conduct [complained of]has caused such substantial prejudice to the defendant that he has been denied dueprocess of law[,]' and . . . defendant failed to establish that the prosecutor'salleged misconduct caused such prejudice" (People v Jacobson, 60 AD3d 1326, 1328 [2009], lvdenied 12 NY3d 916 [2009]). Also contrary to defendant's contention, he was notdenied effective assistance of counsel based on defense counsel's failure to object to theprosecutor's remarks on summation "inasmuch as those comments did not constituteprosecutorial misconduct" (People v Hill, 82 AD3d 1715, 1716 [2011], lvdenied 17 NY3d 806 [2011]).
Defendant failed to preserve for our review his further contention that County Courterred in considering uncharged crimes at sentencing, and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see generally People v Hirsh,106 AD3d 1546, 1548 [2013]; cf. People v Durand, 63 AD3d 1533, 1536 [2009]). Finally,the sentence is not unduly harsh or severe. Present—Scudder, P.J., Fahey,Peradotto, Carni and Valentino, JJ.