        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1268
KA 07-02652
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUCIOUS PETERS, DEFENDANT-APPELLANT.


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.

     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 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 NY2d 620, 621), is
legally sufficient to support the conviction (see People v Roberts, 64
AD3d 796, 797; see generally People v Bleakley, 69 NY2d 490, 495).
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 AD3d 803, 804; see generally Bleakley, 69 NY2d at 495).
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 AD3d 1558, 1559, lv denied 17 NY3d 818 [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 AD3d 1331, lv denied 13 NY3d 942),
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
                                 -2-                         1268
                                                        KA 07-02652

440 (see People v McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d
927). 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 NY2d 137, 147). Finally, the sentence is not unduly harsh
or severe.




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
