PEOPLE v. PATINO (1999)

Appeal by the defendant from (1) a judgment of the County Court, Nassau County (Mackston, J.), rendered March 7, 1997, convicting him of offering a false instrument for filing in the first degree and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, rendered December 17, 1997, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon the previous convictions of offering a false instrument for filing in the first degree and attempted grand larceny.

ORDERED that the judgment and amended judgment are affirmed.

 The defendant's claim that he was a victim of selective prosecution because of the alleged animosity of the Nassau County Police Department towards him fails to establish that he was singled out by the Nassau County District Attorney's Office for this criminal prosecution “based upon an impermissible standard such as race, religion or some other arbitrary classification” (Matter of 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693, 416 N.Y.S.2d 219, 389 N.E.2d 815).   Thus, absent a colorable claim, an evidentiary hearing on that issue was not warranted (see, Matter of 303 West 42nd St. Corp. v. Klein, supra, at 695-696, 416 N.Y.S.2d 219, 389 N.E.2d 815).

 The defendant's contention that Retirement and Social Security Law § 411(a) provided the exclusive remedy for his offense (see, People v. Pisano, 105 A.D.2d 1156, 482 N.Y.S.2d 593) is unpreserved for appellate review.   In any event, his contention is unavailing.   Here, both Retirement and Social Security Law § 411(a) and Penal Law § 175.35, concerning offering a false instrument for filing, are applicable.   A defendant has no right to select under which of two applicable statutes he or she shall be indicted (see, People v. Eboli, 34 N.Y.2d 281, 289, 357 N.Y.S.2d 435, 313 N.E.2d 746).   Moreover, Retirement and Social Security Law § 411(a) is not an exclusive remedy, nor is there evidence of legislative intent to preclude application of Penal Law § 175.35 (see, People v. Eboli, supra, at 287, 357 N.Y.S.2d 435, 313 N.E.2d 746;  accord, People v. Walsh, 67 N.Y.2d 747, 500 N.Y.S.2d 96, 490 N.E.2d 1222;  People v. Lacay, 115 A.D.2d 450, 452, 496 N.Y.S.2d 337).

 Contrary to the defendant's contention, the erroneous advice given by the new counsel he retained after sentencing does not constitute a violation of the constitutional right to effective representation (see, N.Y. Const., art. I, § 6;  People v. Claudio, 83 N.Y.2d 76, 607 N.Y.S.2d 912, 629 N.E.2d 384).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.