Opinion
December 28, 1999
Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered September 19, 1996, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 3+ to 7 years, unanimously affirmed.
Cheryl D. Harris, for Respondent.
Eugene B. Nathanson, for Defendant-Appellant.
TOM, J.P., WALLACH, LERNER, SAXE, BUCKLEY, JJ.
Defendant's claim of insufficient evidence of his being "aided by another person actually present" was not preserved for appellate review and we decline to review it in the interest of justice. Were we to review defendant's claim, we would find that there was ample evidence that defendant's accomplice aided defendant and was "actually present" ( Penal Law § 160.10[1]; People v. Casmento, 155 A.D.2d 229, lv denied 75 N.Y.2d 229), including evidence that the accomplice drove the getaway vehicle directly at the armed complainant in order to prevent him from interfering with the escape. Since defendant has failed to demonstrate that such a sufficiency claim, had it been pursued, would have been successful, the fact that counsel did not raise that claim did not render his assistance ineffective (see, People v. Hernandez, 248 A.D.2d 149, lv denied 91 N.Y.2d 1008).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.