PEOPLE v. WASHINGTON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Terry WASHINGTON, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ) and assault in the second degree (§ 120.05 [2] ).   Defendant failed to renew his motion for a trial order of dismissal with respect to the count of depraved indifference murder after presenting evidence and thus failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to that count (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   In any event, defendant's contention is without merit inasmuch as the evidence is legally sufficient to support the conviction of that count (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that he was denied the right to effective assistance of counsel based solely on defense counsel's failure to renew the motion for a trial order of dismissal with respect to the murder count.   We reject that contention.  “A single error may qualify as ineffective assistance, but only when the 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).   Here, inasmuch as we have concluded that the evidence is legally sufficient to support the conviction of the murder count, it cannot be said that defense counsel's failure to renew the motion for a trial order of dismissal with respect to that count constitutes ineffective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: