Opinion
3247-3247A.
Decided March 30, 2004.
Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered August 1, 2000, convicting defendant, after a jury trial, of conspiracy in the second degree, attempted murder in the second degree, assault in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and sentencing him, as a second felony offender, to an aggregate term of 48 years, and judgment, same court (Michael Gross, J. at plea; Leslie Crocker Snyder, J. at sentence), rendered August 1, 2000, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him to a consecutive term of 5 to 15 years, unanimously affirmed.
Sandra E. Cavazos, for Respondent.
Steven N. Feinman, for Defendant-Appellant.
Before: Nardelli, J.P., Tom, Andrias, Saxe, Marlow, JJ.
The record establishes that defendant received effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). Trial counsel was not obligated to make a motion to sever defendant's trial from that of the codefendants, since there was no legal basis for such a motion ( see People v. De Los Angeles, 270 A.D.2d 196, 197-198, lv denied 95 N.Y.2d 889). Furthermore, there is no indication that a separate trial would have resulted in a more favorable verdict for defendant.
Since defendant did not move to withdraw his plea, his claim that his sentence violated his plea agreement is unpreserved and we decline to review it in the interest of justice ( see People v. Costello, 231 A.D.2d 446, 447, lv denied, 89 N.Y.2d 863). Were we to review this claim, we would reject it ( id.). In any event, we note that defendant's aggregate sentence upon his trial and plea convictions is deemed to be 40 years (Penal Law § 70.30[e][v][A]), and that the sentence enhancement on the plea conviction had no practical effect on the aggregate term.
We perceive no basis for reducing the sentences.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.