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

49
KA 12-00792
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMAR MARTIN, 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 (Anthony F.
Aloi, J.), rendered October 25, 2010. The judgment convicted
defendant, upon a jury verdict, of hindering prosecution 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 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 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“[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 AD3d 1456, 1457, lv
denied 13 NY3d 942 [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 (see CPL 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 AD3d 1326,
1328, lv denied 12 NY3d 916). 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 AD3d 1715, 1716, lv denied 17 NY3d
806).
                                 -2-                           49
                                                        KA 12-00792

     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 AD3d 1546, 1548; cf. People v Durand, 63 AD3d 1533,
1536). Finally, the sentence is not unduly harsh or severe.




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
