Opinion
May 30, 1989
Appeal from the County Court, Westchester County (Rosato, J.).
Ordered that the judgment is reversed, on the law, count six of the indictment, which charged the defendant with attempted assault in the second degree pursuant to Penal Law §§ 110.00 and 120.05 (3) is dismissed, and a new trial is ordered on the remaining counts.
In an appeal by the defendant from an unrelated judgment of conviction, this court determined that the trial court's ruling on the defendant's Sandoval motion was erroneous insofar as it would have permitted cross-examination of the defendant with respect to certain uncharged crimes involving a planned robbery of a law firm, a planned murder of an airline executive and a murder in White Plains (People v Eddins, 143 A.D.2d 355). The trial court made the same ruling on the defendant's Sandoval motion in this case. We adhere to our previous decision and find that the trial court's ruling was erroneous only with respect to these uncharged crimes. It is assumed that this erroneous Sandoval ruling affected the defendant's decision not to testify (see, People v Di Nicolantonio, 140 A.D.2d 44). Accordingly, the defendant's convictions are reversed, and a new trial is ordered. However, the count in the indictment charging attempted assault in the second degree under Penal Law §§ 110.00 and 120.05 (3) must be dismissed because an attempted assault under that statute is a legal impossibility (see, People v Campbell, 72 N.Y.2d 602).
Since there must be a new trial, we note that the various charges were properly joined under CPL 200.20 (2), and the court did not err in denying the defendant's motion for a severance (see, e.g., People v Nelson, 133 A.D.2d 470; People v Anderson, 118 A.D.2d 788, cert denied 479 U.S. 859).
We find the defendant's remaining contentions to be without merit. Bracken, J.P., Sullivan, Balletta and Rosenblatt, JJ., concur.