People v. Anderson ( 1998 )

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: County Court erred in directing that the sentence imposed on count one, attempted murder in the second degree (see, Penal Law §§ 110.00, 125.25 [1]), run consecutively with the sentences imposed on counts five and six, burglary in the first degree (see, Penal Law § 140.30 [2], [3]). The court further erred in imposing two mandatory surcharges and victim assistance fees in the total amount of $310. The same conduct resulting in defendant’s conviction of attempted murder also constituted the physical injury element of one count of burglary in the first degree and the use of a dangerous instrument element of the other. The sentence on count one therefore must run concurrently with the sentences on counts five and six (see, Penal Law § 70.25 [2]; People v Pringle, 216 AD2d 863, 864, lv denied 86 NY2d 845; see also, People v Laureano, 87 NY2d 640, 644; People v Hyde, 240 AD2d 849, lv denied 91 NY2d 874; cf., People v Smiley, 121 AD2d 274, lv denied 68 NY2d 817), and only a single mandatory surcharge and victim assistance fee in the total amount of $155 may be imposed (see, Penal Law § 60.35 [2]; People v Tarantola, 187 AD2d 546).

Defendant’s contention that the sentence recommendation in the presentence report violates 9 NYCRR former 350.7 (b) (6) is not preserved for our review (see, CPL 470.05 [2]; People v Arnett, 201 AD2d 966, lv denied 83 NY2d 908), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The sentence, as modified, is neither unduly harsh nor severe. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Attempted Murder, 2nd Degree.) Present — Green, J. P., Lawton, Hayes, Pigott, Jr., and Callahan, JJ.