Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Lucious PETERS, Defendant–Appellant.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered January 10, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.Kristin F. Splain, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for defendant-appellant. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered January 10, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.Kristin F. Splain, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for defendant-appellant. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of murder 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 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction ( see People v. Roberts, 64 A.D.3d 796, 797, 882 N.Y.S.2d 695; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Further, “ inasmuch as our independent review of the evidence reveals that a different verdict would have been unreasonable,” we conclude that the verdict is not against the weight of the evidence ( People v. Johnson, 24 A.D.3d 803, 804, 806 N.Y.S.2d 251; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's contention that County Court erred in refusing to suppress the statements that he made to police investigators. “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 might falsely incriminate himself” ( People v. Kithcart, 85 A.D.3d 1558, 1559, 925 N.Y.S.2d 280, lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [internal quotation 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 an abuse of discretion ( see People v. Walker, 66 A.D.3d 1331, 885 N.Y.S.2d 791, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922), and we decline to 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 denied effective assistance of counsel involves matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 ( see People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447). 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 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.