People v. McFadden

39 A.D.3d 1211, 834 N.Y.S.2d 598

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (Dennis M. Kehoe, J.), rendered May 28, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and attempted robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby 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]) and attempted robbery in the first degree (§§ 110.00, 160.15 [4]). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to object to the cross-examination of defendant on an unrelated pending charge. In view of the overwhelming evidence against defendant, we conclude that defense counsel’s “single failing in an otherwise competent performance [was not] so ‘egregious and prejudicial’ as to deprive . . . defendant of his constitutional right [to a fair trial]” (People v Turner, 5 NY3d 476, 480 [2005]; see generally People v Caban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712-713 [1998]). Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.