Opinion
Argued January 6, 2000
February 24, 2000
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered June 11, 1997, convicting him of murder in the second degree, attempted murder in the first degree (five counts), attempted murder in the second degree (five counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, after a nonjury trial, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Toko Serita and Alan Axelrod of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Alyson J. Gill, and Johnnette Traill of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO and NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the convictions for the five counts of attempted murder in the second degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish the defendant's guilt of attempted murder in the first degree with respect to Lieutenant Kerri Schreiner. The prosecution clearly established that the defendant attempted to cause Lieutenant Schreiner's death while she was engaged in the course of performing her official duties as a police officer, and that the defendant knew or should have known that she was a police officer (see, Penal Law § 125.27[1][a][i];People v. Flores, 162 A.D.2d 464 ).
As the People correctly concede, the five counts of attempted murder in the second degree must be dismissed as lesser-inclusory concurrent counts (see, CPL 300.40[3][b]; see, People v. Butler, 192 A.D.2d 543, 545 ).
The defendant's remaining contention is without merit.