People v. Sanders , 700 N.Y.S.2d 811 ( 1999 )

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered September 19, 1996, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 3V2 to 7 years, unanimously affirmed.

Defendant’s claim of insufficient evidence of his being “aided by another person actually present” was not preserved for appellate review and we decline to review it in the interest of justice. Were we to review defendant’s claim, we would find that there was ample evidence that defendant’s accomplice aided defendant and was “actually present” (Penal Law § 160.10 [1]; People v Casmento, 155 AD2d 229, lv denied 75 NY2d 768), including evidence that the accomplice drove the getaway vehicle directly at the armed complainant in order to prevent him from interfering with the escape. Since defendant has failed to demonstrate that such a sufficiency claim, had it been pursued, would have been successful, the fact that counsel did not raise that claim did not render his assistance ineffective (see, People v Hernandez, 248 AD2d 149, lv denied 91 NY2d 1008). Concur — Tom, J. P., Wallach, Lerner, Saxe and Buckley, JJ.