| People v Washington |
| 2009 NY Slip Op 02406 [60 AD3d 1454] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TerryWashington, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedAugust 6, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree and assault 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 ofmurder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) andassault in the second degree (§ 120.05 [2]). Defendant failed to renew his motion for a trialorder of dismissal with respect to the count of depraved indifference murder after presentingevidence and thus failed to preserve for our review his challenge to the legal sufficiency of theevidence with respect to that count (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). In any event, defendant's contention is without meritinasmuch as the evidence is legally sufficient to support the conviction of that count (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was denied the right to effective assistance of counselbased solely on defense counsel's failure to renew the motion for a trial order of dismissal withrespect to the murder count. We reject that contention. "A single error may qualify as ineffectiveassistance, but only when the error is sufficiently egregious and prejudicial as to compromise adefendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]). Here,inasmuch as we have concluded that the evidence is legally sufficient to support the convictionof the murder count, it cannot be said that defense counsel's failure to renew the motion for atrial order of dismissal with respect to that count constitutes ineffective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Martoche,J.P., Smith, Centra, Fahey and Pine, JJ.