*1139Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered January 30, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, attempted murder in the second degree, and assault in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference]), attempted murder in the second degree (§§ 110.00, 125.25 [1] [intentional murder]), and assault in the first degree (§ 120.10 [1]). The conviction arises out of defendant’s participation in an incident wherein a series of shots were fired at one victim, who died, and then additional shots were fired at a second victim. We agree with defendant that the conviction of depraved indifference murder must be set aside as unsupported by legally sufficient evidence of recklessness and depraved indifference. Although defendant failed to preserve his contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Packer, 31 AD3d 1169, 1170 [2006], lv denied 7 NY3d 869 [2006]). Here, the trial evidence establishes defendant’s use of a weapon with a “manifest intent to kill” the victim, thus negating the essential elements of recklessness and depraved indifference and rendering the evidence legally insufficient to support a conviction of depraved indifference murder (People v Payne, 3 NY3d 266, 271 [2004], rearg denied 3 NY3d 767 [2004]; see People v Suarez, 6 NY3d 202, 208-216 [2005]; People v Gonzalez, 1 NY3d 464, 466-468 [2004]). It is “obvious that the more the defendant shoots . . . the victim, the more clearly intentional is the homicide,” and the less “indifferent” it is (Payne, 3 NY3d at 272; see generally Suarez, 6 NY3d at 208-210; Gonzalez, 1 NY3d at 467-469). Further, the Court of Appeals has stated that a “one-on-one” shoot*1140ing, as was the case here, can “almost never” qualify as depraved indifference murder (Payne, 3 NY3d at 272). We therefore modify the judgment by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment (see id. at 273; People v Gonzalez, 302 AD2d 870, 872 [2003], affd 1 NY3d 464, 469 [2004]; People v Hawthorne, 35 AD3d 499, 501 [2006]; People v Rodriguez, 34 AD3d 1181, 1182 [2006]; see also CPL 470.15 [2] [b]; 470.20 [2], [3]; see generally People v McMillon, 31 AD3d 136, 140 [2006], lv denied 7 NY3d 815 [2006]).
In view of our determination, we need not address the contention of defendant that the verdict finding him guilty of depraved indifference murder is against the weight of the evidence on the elements of recklessness and depraved indifference (see People v Lawhorn, 21 AD3d 1289, 1291 [2005]). We conclude, however, that the evidence is legally sufficient to establish defendant’s identity as one of the shooters (see People v Little, 23 AD3d 1117, 1118 [2005], lv denied 6 NY3d 777 [2006]; People v Quinney, 305 AD2d 1044 [2003], lv denied 100 NY2d 586 [2003]; People v Spirles, 294 AD2d 810, 810-811 [2002], lv denied 98 NY2d 713, 99 NY2d 540 [2002]), and that the verdict is not against the weight of the evidence with respect to the issue of identification (see People v Coleman, 32 AD3d 1239 [2006]; Quinney, 305 AD2d at 1044; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the contention of defendant, Supreme Court did not err in admitting the out-of-court declarations of the complainant as excited utterances (see generally People v Johnson, 1 NY3d 302, 306 [2003]; People v Vasquez, 88 NY2d 561, 579 [1996]; People v Brown, 70 NY2d 513, 518 [1987]; People v Edwards, 47 NY2d 493, 497 [1979]). Nor was defendant denied effective assistance of counsel. The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v Flores, 84 NY2d 184, 187 [1994]; People v Baldi, 54 NY2d 137, 147 [1981]). We likewise reject defendant’s contention that the sentence is unduly harsh or severe and, in view of our determination, we do not address defendant’s remaining contention.
Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of attempted murder in the second degree under Penal Law §§ 110.00 and 125.25 (2), and it must therefore be amended to reflect that he was convicted under Penal Law §§ 110.00 and 125.25 (1) (see People v Saxton, 32 AD3d 1286 [2006]; People v Benson, 265 AD2d 814, *1141816 [1999], lv denied 94 NY2d 860 [1999], cert denied 529 US 1076 [2000]).
All concur except Smith and Lunn, JJ., who dissent in part and vote to affirm in the following memorandum.