People v. Pendergraph

• Decision Date: 05 May 2017
• Citation: 54 N.Y.S.3d 257,150 A.D.3d 1703
• Parties: The PEOPLE of the State of New York, Respondent, v. Glenn A. PENDERGRAPH, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1703
54 N.Y.S.3d 257

The PEOPLE of the State of New York, Respondent,
v.
Glenn A. PENDERGRAPH, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

May 5, 2017.

54 N.Y.S.3d 258

Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ). Defendant's contention that he was denied a fair trial based upon prosecutorial misconduct is unpreserved for our review inasmuch as defendant did not object to any of the alleged instances of misconduct (see CPL 470.05[2] ; People v. Smith, 129 A.D.3d 1549, 1549, 10 N.Y.S.3d 374, lv. denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 ). 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 A.D.3d 1348, 1348, 17 N.Y.S.3d 256, lv. denied 26 N.Y.3d 1145, 32 N.Y.S.3d 59, 51 N.E.3d 570 [internal quotation marks omitted] ).

We reject defendant's contention that he was denied effective assistance of counsel. With respect to the alleged instances of prosecutorial misconduct, inasmuch as they were not so egregious as to deprive defendant of a fair trial, "defense counsel's failure to object thereto did not deprive defendant of effective assistance of counsel" (id. at 1348, 32 N.Y.S.3d 59, 51 N.E.3d 570 ). With respect to the remaining instances of alleged ineffective assistance, we conclude that defendant has failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel's alleged shortcomings (see generally People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). Moreover, considering the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see People v. Rivera, 112 A.D.3d 1288, 1288, 977 N.Y.S.2d 822, lv. denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807, 16 N.E.3d 1287 ; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

We further reject defendant's contention that County Court erred in denying his motion to set aside the verdict pursuant to CPL 330.30 without a hearing inasmuch as defendant failed to show that the alleged newly discovered evidence could not have been discovered prior to trial in the exercise of reasonable diligence (see People v. Thomas, 136 A.D.3d 1390, 1391, 25 N.Y.S.3d 500, lv. denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521, reconsideration

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