| People v Pendergraph |
| 2017 NY Slip Op 03681 [150 AD3d 1703] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Glenn A.Pendergraph, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedNovember 29, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon 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 jury verdict, ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [2]). Defendant's contention that he wasdenied a fair trial based upon prosecutorial misconduct is unpreserved for our review inasmuchas defendant did not object to any of the alleged instances of misconduct (see CPL 470.05[2]; People v Smith, 129 AD3d1549, 1549 [2015], lv denied 26 NY3d 971 [2015]). In any event, we conclude that"[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" (People v Hendrix, 132 AD3d1348, 1348 [2015], lv denied 26 NY3d 1145 [2016] [internal quotation marksomitted]).
We reject defendant's contention that he was denied effective assistance of counsel. Withrespect to the alleged instances of prosecutorial misconduct, inasmuch as they were not soegregious as to deprive defendant of a fair trial, "defense counsel's failure to object thereto didnot deprive defendant of effective assistance of counsel" (id. at 1348). With respect to theremaining instances of alleged ineffective assistance, we conclude that defendant has failed todemonstrate a lack of strategic or other legitimate explanations for defense counsel's allegedshortcomings (see generally People v Benevento, 91 NY2d 708, 713 [1998]). Moreover,considering the evidence, the law and the circumstances of this case, viewed in totality and as ofthe time of the representation, we conclude that defendant received meaningful representation(see People v Rivera, 112 AD3d1288, 1288 [2013], lv denied 23 NY3d 1024 [2014]; see generally People vBaldi, 54 NY2d 137, 147 [1981]).
We further reject defendant's contention that County Court erred in denying his motion to setaside the verdict pursuant to CPL 330.30 without a hearing inasmuch as defendant failed to showthat the alleged newly discovered evidence could not have been discovered prior to trial in theexercise of reasonable diligence (seePeople v Thomas, 136 AD3d 1390, 1391 [2016], lv denied 27 NY3d 1140[2016], denied reconsideration 28 NY3d 974 [2016]).
Defendant failed to preserve for our review his contention that the court's Molineuxruling deprived him of a fair trial (seePeople v Thomas, 85 AD3d 1572, 1572 [2011], affd 21 NY3d 226 [2013]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Curran, JJ.