Opinion
346
March 15, 2002.
Appeal from a judgment of Onondaga County Court (Fahey, J.), entered January 25, 2001, convicting defendant after a jury trial of, inter alia, attempted murder in the second degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Robert P. Rickert of counsel), for defendant-appellant.
Randy Williams, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. Anthony of counsel), for plaintiff-respondent.
PRESENT: PINE, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that all sentences shall run concurrently and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law § 110.00, 125.25), assault in the first degree (Penal Law § 120.10), criminal possession of a weapon in the third degree (Penal Law § 265.02), and criminal use of a firearm in the first degree (Penal Law § 265.09). Defendant was sentenced to a definite term of incarceration of five years on the count of criminal use of a firearm in the first degree, to run consecutively to the concurrent terms of incarceration imposed on the remaining counts, for an aggregate term of incarceration of 20 years. Contrary to defendant's contentions, the evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence. According to the evidence presented by the People at trial, defendant left his home with a gun and made a statement indicating that he intended to shoot rival gang members; defendant fit the description of the shooter provided by several eyewitnesses to the shooting; the victim identified defendant by name; and the gun used in the shooting, as well as the clothing described by the eyewitnesses, were found in defendant's home after the shooting. That evidence is legally sufficient to support the conviction ( see, People v. Welcome, 181 A.D.2d 628, lv denied 79 N.Y.2d 1055) and further supports the conclusion that, despite minor variations in the descriptions of the shooter provided by the eyewitnesses, the jury did not fail to give the evidence the weight it should be accorded ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
Moreover, we conclude that defendant was not deprived of effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147), nor was he deprived of a fair trial by County Court's evidentiary rulings ( cf., People v. Rubin, 101 A.D.2d 71, 76-77, lv denied 63 N.Y.2d 711). The further contention of defendant that there was a Batson violation is raised for the first time in defendant's reply brief and therefore is not properly before us ( see, People v Minota, 137 A.D.2d 837, 838, lv denied 71 N.Y.2d 1030). In any event, that contention is unpreserved for our review because defendant "failed to articulate to the court `any reason why he believed that the prosecutor's explanations [for challenging the prospective juror] were pretextual'" ( People v. Bodine, 283 A.D.2d 979, lv denied 96 N.Y.2d 898). The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct is in part unpreserved for our review and, in any event, is lacking in merit ( see, People v. Rubin, supra, at 77-78).
However, inasmuch as defendant was sentenced to determinate terms of incarceration for the attempted murder and assault counts, the court erred in sentencing defendant to a consecutive term of incarceration for criminal use of a firearm in the first degree ( see, Penal Law § 265.09). We therefore modify the judgment of conviction by directing that all sentences shall run concurrently ( see, People v. LaSalle, 95 N.Y.2d 827, 829).