| People v Lott |
| 2008 NY Slip Op 07307 [55 AD3d 1274] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rasheid K.Lott, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered September 25, 2006. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree, kidnapping in the seconddegree, criminal use of a firearm in the first degree, criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal possession of a weapon in the seconddegree and dismissing count nine of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]).We previously reversed the judgment convicting defendant of identical charges and granteddefendant a new trial based on our determination that he was denied the right to counsel (People v Lott, 23 AD3d 1088[2005]). Defendant now contends that he was denied effective assistance of counsel because hehad been acquitted of attempted robbery in the first degree under the fourth count of theindictment at the first trial, but defense counsel failed to seek dismissal of that count at the retrialand it was submitted to the jury. We reject that contention. Although "[a] single error may qualifyas ineffective assistance [when such] . . . error is sufficiently egregious andprejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152[2005]; see People v Hobot, 84 NY2d 1021, 1022 [1995]), that cannot be said here. Weagree with defendant that defense counsel erred in failing to seek dismissal of the attemptedrobbery count (see generally People v Gravesandy, 221 AD2d 465 [1995], lv denied87 NY2d 921 [1996]). Nevertheless, defendant at the retrial was again acquitted of thatcount, and the evidence presented at the retrial with respect to the alleged attempted robberywould have been admissible even had the count been dismissed. Thus, "[u]nder any view of therecord in this case, [defense] counsel's omission did not prejudice the defense or defendant's rightto a fair trial" (Hobot, 84 NY2d at 1024).
Contrary to the further contention of defendant, Supreme Court properly determined that[*2]his testimony at the first trial could be used for impeachmentpurposes in the event that he elected to testify at the retrial (see People v Pilbeam, 209AD2d 934 [1994], lv denied 86 NY2d 739 [1995]; see generally People v Maerling,64 NY2d 134, 140 [1984]). In addition, viewing the evidence in the light most favorable tothe People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat it is legally sufficient to support the conviction (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Further, the verdict is not against the weight of the evidence (seegenerally id.). Also contrary to defendant's contention, the court properly determined thatstatements made by the victim at the hospital while awaiting surgery to repair six gunshotwounds were admissible as excited utterances (see People v Parsons, 13 AD3d 1099, 1100 [2004], lv denied4 NY3d 801, 855 [2005]).
Defendant failed to preserve for our review his contention that the court's Sandovalruling constituted an abuse of discretion (see People v Robles, 38 AD3d 1294, 1295 [2007], lv denied8 NY3d 990 [2007]), as well as his contention that the count of criminal use of a firearm inthe first degree should be dismissed as a noninclusory concurrent count of assault in the firstdegree (see generally People vMcLaurin, 27 AD3d 1117 [2006], lv denied 7 NY3d 759 [2006]), and wedecline to exercise our power to review those contentions as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Although defendant failed to preserve for our reviewhis further contention that the count of criminal possession of a weapon in the second degree(Penal Law § 265.03 [former (2)]) should be dismissed as an inclusory concurrent count ofcriminal use of a firearm in the first degree (§ 265.09 [1] [a]), preservation of thatcontention is not required (see People vMoore, 41 AD3d 1149, 1152 [2007], lv denied 9 NY3d 879, 992 [2007]). Weconclude that defendant's contention has merit (see People v Fowler, 45 AD3d 1372, 1374 [2007], lv denied9 NY3d 1033 [2008]), and we therefore modify the judgment accordingly.
The People met their burden of proving that defendant had been subjected to two or moreviolent predicate felony convictions, and the court thus was not required to conduct a hearingbefore determining that defendant was a persistent violent felony offender (see CPL400.15 [4]; 400.16 [2]; People vWilliams, 30 AD3d 980, 983 [2006], lv denied 7 NY3d 852 [2006]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Martoche, Greenand Gorski, JJ.