PEOPLE v. LOTT (2008)

 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 granted defendant a new trial based on our determination that he was denied the right to counsel (People v. Lott, 23 A.D.3d 1088, 804 N.Y.S.2d 881).   Defendant now contends that he was denied effective assistance of counsel because he had been acquitted of attempted robbery in the first degree under the fourth count of the indictment at the first trial, but defense counsel failed to seek dismissal of that count at the retrial and it was submitted to the jury.   We reject that contention.   Although “[a] single error may qualify as ineffective assistance [when such] ․ error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102), that cannot be said here.   We agree with defendant that defense counsel erred in failing to seek dismissal of the attempted robbery count (see generally People v. Gravesandy, 221 A.D.2d 465, 633 N.Y.S.2d 563, lv. denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514).   Nevertheless, defendant at the retrial was again acquitted of that count, and the evidence presented at the retrial with respect to the alleged attempted robbery would have been admissible even had the count been dismissed.   Thus, “[u]nder any view of the record in this case, [defense] counsel's omission did not prejudice the defense or defendant's right to a fair trial” (Hobot, 84 N.Y.2d at 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

 Contrary to the further contention of defendant, Supreme Court properly determined that his testimony at the first trial could be used for impeachment purposes in the event that he elected to testify at the retrial (see People v. Pilbeam, 209 A.D.2d 934, 619 N.Y.S.2d 228, lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717;  see generally People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231).   In addition, viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that it is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Further, the verdict is not against the weight of the evidence (see generally id.).   Also contrary to defendant's contention, the court properly determined that statements made by the victim at the hospital while awaiting surgery to repair six gunshot wounds were admissible as excited utterances (see People v. Parsons, 13 A.D.3d 1099, 1100, 786 N.Y.S.2d 674, lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93, 4 N.Y.3d 855, 797 N.Y.S.2d 429, 830 N.E.2d 328).

 Defendant failed to preserve for our review his contention that the court's Sandoval ruling constituted an abuse of discretion (see People v. Robles, 38 A.D.3d 1294, 1295, 832 N.Y.S.2d 339, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 493, 869 N.E.2d 669), as well as his contention that the count of criminal use of a firearm in the first degree should be dismissed as a noninclusory concurrent count of assault in the first degree (see generally People v. McLaurin, 27 A.D.3d 1117, 815 N.Y.S.2d 369, lv. denied 7 N.Y.3d 759, 819 N.Y.S.2d 885, 853 N.E.2d 256), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Although defendant failed to preserve for our review his 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 of criminal use of a firearm in the first degree (§ 265.09[1][a] ), preservation of that contention is not required (see People v. Moore, 41 A.D.3d 1149, 1152, 837 N.Y.S.2d 480, lv. denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758, 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025).   We conclude that defendant's contention has merit (see People v. Fowler, 45 A.D.3d 1372, 1374, 845 N.Y.S.2d 599, lv. denied 9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206), and we therefore modify the judgment accordingly.

 The People met their burden of proving that defendant had been subjected to two or more violent predicate felony convictions, and the court thus was not required to conduct a hearing before determining that defendant was a persistent violent felony offender (see CPL 400.15[4];  400.16[2];  People v. Williams, 30 A.D.3d 980, 983, 818 N.Y.S.2d 694, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count nine of the indictment and as modified the judgment is affirmed.

MEMORANDUM: