PEOPLE v. MURPHY (2007)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25[3] [felony murder] ) and two counts of attempted robbery in the first degree (§§ 110.00, 160.15[1], [2] ).   Defendant failed to object to County Court's alleged failure to apply the appropriate legal standard in evaluating his Batson challenge at a time when the court could have remedied the perceived error and thus failed to preserve his contention concerning that alleged failure for our review (see People v. Benjamin, 35 A.D.3d 1185, 825 N.Y.S.2d 397, lv. denied 8 N.Y.3d 919, 834 N.Y.S.2d 509, 866 N.E.2d 455;  People v. Correa, 265 A.D.2d 488, 696 N.Y.S.2d 705, lv. denied 94 N.Y.2d 861, 704 N.Y.S.2d 536, 725 N.E.2d 1098;  People v. Parks, 210 A.D.2d 437, 620 N.Y.S.2d 978, lv. denied 85 N.Y.2d 941, 627 N.Y.S.2d 1003, 651 N.E.2d 928).   We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see Benjamin, 35 A.D.3d 1185, 825 N.Y.S.2d 397;  People v. Strong, 17 A.D.3d 1121, 1122, 794 N.Y.S.2d 258, lv. denied 5 N.Y.3d 795, 801 N.Y.S.2d 816, 835 N.E.2d 676).   We reject the further contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to challenge the legality of the warrantless arrest of defendant at his home pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 when seeking suppression of defendant's statements to the police.   Defendant failed to meet his burden of “demonstrat [ing] the absence of strategic or other legitimate explanations” for defense counsel's failure to do so (People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: