Opinion
June 10, 1998
Appeal from Judgment of Erie County Court, Drury, J. — Attempted Murder, 2nd Degree.
Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law § 110.00, 125.25 Penal [1]), assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the second degree (Penal Law § 265.03). Defendant failed to preserve for our review his contentions that County Court erred in allowing bolstering testimony regarding a nonwitness and that he was denied his right to a fair trial by prosecutorial misconduct during opening and closing statements (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19). We decline to exercise our power to review those issues as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). We reject the contention of defendant that the court erred in admitting evidence of his prior uncharged criminal acts. The evidence of defendant's prior involvement in drug dealing was admissible because it tended to establish defendant's motive in shooting the victim, a neighborhood activist and block club member (see, People v. Molineux, 168 N.Y. 264, 293-294).
Contrary to defendant's contention, assault in the first degree is not an inclusory concurrent count of attempted murder in the second degree (see, People v. Reed, 236 A.D.2d 866, 867, lv denied 89 N.Y.2d 1099; People v. Vasquez, 209 A.D.2d 203, 204, lv denied 85 N.Y.2d 915). Thus, dismissal of defendant's assault conviction on that ground is not required. In view of the heinous nature of the crime, the sentence is neither unduly harsh nor severe.