PEOPLE v. PYATT (2006)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered February 23, 2005, convicting defendant, after a jury trial, of attempted assault in the first degree and two counts of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 10 years, 5 years and 5 years, unanimously modified, on the law, to the extent of vacating the second violent felony adjudication and sentence, and remanding for resentencing in accordance with this decision, and otherwise affirmed.

 Defendant's argument that the attempted assault count was duplicitous because it charged that he and the codefendant committed the crime by means of two separate weapons is unpreserved and we decline to review it in the interest of justice.   To the extent defendant could be viewed as having raised this issue, he did so both in an untimely fashion (see People v. Bennett, 207 A.D.2d 708, 616 N.Y.S.2d 945 [1994], lv. denied 84 N.Y.2d 933, 621 N.Y.S.2d 529, 645 N.E.2d 1229 [1994] ) and on a completely different theory of duplicity from the one he advances on appeal (see People v. Hernandez, 235 A.D.2d 367, 653 N.Y.S.2d 322 [1997], lv. denied 89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ).   Were we to review this claim, we would find that the count at issue was not duplicitous on its face or under the facts adduced at trial, where defendant and his codefendant assaulted the complainant with two weapons in a simultaneous attack (compare People v. Sollars, 91 A.D.2d 909, 457 N.Y.S.2d 792 [1983], with People v. Rosado, 64 A.D.2d 172, 177, 409 N.Y.S.2d 216 [1978] ).

 The People concede that defendant was improperly adjudicated a second violent felony offender because that adjudication was based on a predicate conviction of attempted assault in the second degree, which is not a statutory violent felony (People v. Gilchrist, 267 A.D.2d 71, 699 N.Y.S.2d 681 [1999] ).   The People also concede that indeterminate sentences are required for defendant's convictions of criminal possession of a weapon under Penal Law § 265.02(1), because that offense is also not a statutory violent felony (People v. Jones, 305 A.D.2d 264, 266, 759 N.Y.S.2d 467 [2003], lv. denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003] ).