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

653
KA 07-00150
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLENN A. PENDERGRAPH, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 29, 2006. The judgment convicted
defendant, upon a jury verdict, of murder in the second 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, 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 AD3d
1549, 1549, lv denied 26 NY3d 971). 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 AD3d 1348, 1348, lv
denied 26 NY3d 1145 [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). 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 NY2d 708, 713). 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
                                 -2-                           653
                                                         KA 07-00150

meaningful representation (see People v Rivera, 112 AD3d 1288, 1288,
lv denied 23 NY3d 1024; see generally People v Baldi, 54 NY2d 137,
147).

     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 AD3d 1390, 1391, lv denied 27 NY3d 1140, reconsideration denied 28
NY3d 974).

     Defendant failed to preserve for our review his contention that
the court’s Molineux ruling deprived him of a fair trial (see People v
Thomas, 85 AD3d 1572, 1572, affd 21 NY3d 226), 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]). Finally, the
sentence is not unduly harsh or severe.




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
