Opinion
2014-02-7
The PEOPLE of the State of New York, Respondent, v. Jamar MARTIN, Defendant–Appellant.
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, of hindering prosecution in the second degree. Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Piotr Banasiak of Counsel), for Respondent.
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, of hindering prosecution in the second degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Piotr Banasiak of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict 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, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ). Defendant's further contention that he was deprived of a fair trial by certain remarks made by the prosecutor on summation is not preserved for our review ( seeCPL 470.05[2] ) and, in any event, that contention lacks merit. “Reversal based on prosecutorial misconduct is ‘mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law[,]’ and ... defendant failed to establish that the prosecutor's alleged misconduct caused such prejudice” (People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259, lv. denied12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078). Also contrary to defendant's contention, he was not denied effective assistance of counsel based on defense counsel's failure to object to the prosecutor's remarks on summation “inasmuch as those comments did not constitute prosecutorial misconduct” (People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688, lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804).
Defendant failed to preserve for our review his further contention that County Court erred in considering uncharged crimes at sentencing, and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see generally People v. Hirsh, 106 A.D.3d 1546, 1548, 965 N.Y.S.2d 266; cf. People v. Durand, 63 A.D.3d 1533, 1536, 880 N.Y.S.2d 409). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, and VALENTINO, JJ., concur.