PEOPLE v. HOLLENQUEST (2003)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), and various weapons and drug possession charges.   Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of attempted murder in the second degree (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People presented evidence that, during a routine traffic stop, defendant pointed a handgun directly at the police officer and fired it at him.   That evidence is legally sufficient to support the jury's finding that defendant intended to kill the officer (see People v. Cabassa, 79 N.Y.2d 722, 728, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563).   Because the photographs introduced at trial are “essentially collateral,” the loss of those photographs does not preclude meaningful appellate review of the legal sufficiency of the evidence (People v. Yavru-Sakuk, 98 N.Y.2d 56, 60, 745 N.Y.S.2d 787, 772 N.E.2d 1145).   We further conclude that County Court properly admitted testimony that on a prior occasion defendant stated his intention to kill a police officer.   Evidence of prior threats is admissible “if it helps to establish some element of the crime under consideration,” provided that “its probative value exceeds the potential for prejudice to the defendant” (People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Here, the challenged evidence was directly and highly relevant to the issue of defendant's intent and to refute the defense that the shooting was accidental.   We likewise conclude that the court properly allowed the People to present evidence that, shortly after the shooting, defendant committed an uncharged assault, inasmuch as evidence of subsequent similar crimes is also relevant to establish defendant's intent or state of mind (see People v. Ingram, 71 N.Y.2d 474, 480, 527 N.Y.S.2d 363, 522 N.E.2d 439).   Defendant received meaningful representation (see People v. Chaney, 284 A.D.2d 998, 727 N.Y.S.2d 372, lv. denied 96 N.Y.2d 917, 732 N.Y.S.2d 633, 758 N.E.2d 659), and the sentence is not unduly harsh or severe.

 We agree with defendant, however, and the People properly concede, that criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1] ) is an inclusory concurrent count of criminal possession of a weapon in the third degree (§ 220.16;  see CPL 300.30[4] ).   Consequently, the criminal possession of a weapon in the fourth degree count should have been dismissed when the jury returned a guilty verdict on the criminal possession in the third degree count (see 300.40[3][b];  People v. Johnson, 39 N.Y.2d 364, 370, 384 N.Y.S.2d 108, 348 N.E.2d 564, overruled on other grounds People v. Carpenito, 80 N.Y.2d 65, 68 n., 587 N.Y.S.2d 264, 599 N.E.2d 668;  People v. Cassesse, 80 A.D.2d 860, 436 N.Y.S.2d 758, lv. denied 53 N.Y.2d 841, 440 N.Y.S.2d 1031, 422 N.E.2d 837, cert. denied 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94).   Defendant's remaining contentions are not preserved for our review (see 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see 470.15[6][a] ).   We therefore modify the judgment by reversing that part convicting defendant of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon and dismissing count four of the indictment.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon and dismissing count four of the indictment and as modified the judgment is affirmed.

MEMORANDUM: