| People v Tambadou |
| 2008 NY Slip Op 09117 [56 AD3d 953] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ebrima M.Tambadou, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered October 4, 2007, convicting defendant upon his plea of guilty of the crimes ofattempted murder in the second degree, attempted assault in the first degree, criminal possessionof a weapon in the second degree, reckless endangerment in the first degree and assault in thesecond degree.
Defendant was charged by indictment with attempted murder in the second degree, attemptedassault in the first degree, criminal possession of a weapon in the second degree, recklessendangerment in the first degree and assault in the second degree. The charges stemmed from anincident in the City of Binghamton, Broome County, in which, after engaging in an altercationwith the victim and two others, defendant allegedly fired a handgun approximately five timesinto a crowd with the intent to kill the victim. Defendant pleaded guilty to all of the counts in theindictment and was thereafter sentenced to an aggregate prison term of eight years, with fiveyears of postrelease supervision. Defendant now appeals.
Initially, inasmuch as a defendant can attempt to cause the death of one victim andsimultaneously engage in conduct that recklessly endangers others (see e.g. People v Craft, 36 AD3d1145, 1147 [2007], lv denied 8 NY3d 945 [2007]), we reject defendant's contentionthat the indictment improperly charged him with both attempted intentional murder in the seconddegree (see Penal Law §§ 110.00, 125.25) and reckless endangerment in thefirst degree (see [*2]Penal Law § 120.25). Here,defendant was charged with attempted murder for firing his gun with the intent to kill the victim,and with reckless endangerment for firing his gun multiple times into a crowd, thereby creating agrave risk of death to those people. As such, the counts of the indictment are not legallyincompatible (see People v Trappier, 87 NY2d 55, 57 [1995]; People v Craft, 36AD3d at 1147). Contrary to defendant's contention, he was provided with adequate notice of thecharges against him inasmuch as the indictment and accompanying bill of particulars sufficientlyprovide a "plain and concise factual statement" for each count, asserting facts to support eachelement of the crimes charged (CPL 200.50 [7] [a]; see People v Morris, 61 NY2d 290,292-293 [1984]; People vYakubova, 11 AD3d 644, 645 [2004], lv denied 4 NY3d 769 [2005]).
Finally, to the extent that defendant contends that he pleaded guilty to a nonexistent crime,we have considered such claim and find it to be without merit. To the extent that he challengesthe sufficiency of his plea allocution, the claim was not properly preserved for appellate reviewby a motion to withdraw his plea or vacate the judgment of conviction. Nor did defendant'sfactual recitation negate an essential element of any crime to which he pleaded guilty (seePeople v Lopez, 71 NY2d 662, 665-666 [1988]).
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.