PEOPLE v. SHOMO (2003)

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered December 15, 2000, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

 The court properly exercised its discretion in admitting evidence of uncharged crimes, with suitable limiting instructions.   Evidence of defendant's use of a firearm on certain relevant occasions was highly probative, given defendant's claim that at the time of the shooting he was physically incapable of holding or firing a handgun and thus could not have been the killer (see People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Moreover, defendant himself introduced much of the evidence of which he now complains.

 The court properly adjudicated defendant a persistent violent felony offender without conducting an evidentiary hearing.   Defendant's claim that he received ineffective assistance in connection with his 1982 predicate conviction was patently meritless, since the Court of Appeals has rejected the same argument concerning felony classifications that defendant faulted his attorney for failing to raise (see People v. Morse, 62 N.Y.2d 205, 217, 476 N.Y.S.2d 505, 465 N.E.2d 12, appeal dismissed sub nom.  Vega v. New York, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959).   Accordingly, no hearing was required (see People v. Green, 202 A.D.2d 280, 608 N.Y.S.2d 470, lv. denied 84 N.Y.2d 868, 618 N.Y.S.2d 13, 642 N.E.2d 332).