Opinion
October 2, 1998
Appeal from Judgment of Niagara County Court, Hannigan, J. — Attempted Murder, 2nd Degree.
Present — Green, J. P., Lawton, Hayes, Pigott, Jr., and Callahan, JJ.
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 Penal [1]), run consecutively with the sentences imposed on counts five and six, burglary in the first degree ( see, Penal Law § 140.30, [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; People v. Pringle, 216 A.D.2d 863, 864, lv denied 86 N.Y.2d 845; see also, People v. Laureano, 87 N.Y.2d 640, 644; People v. Hyde, 240 A.D.2d 849, lv denied 91 N.Y.2d 874; cf., People v. Smiley, 121 A.D.2d 274, lv denied 68 N.Y.2d 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; People v. Tarantola, 187 A.D.2d 546).
Defendant's contention that the sentence recommendation in the presentence report violates 9 N.Y.CRR former 350.7 (b) (6) is not preserved for our review ( see, CPL 470.05; People v. Arnett, 201 A.D.2d 966, lv denied 83 N.Y.2d 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 [a]). The sentence, as modified, is neither unduly harsh nor severe.