Decided on March 13, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Saxe, Acosta, DeGrasse, Roman, JJ.
Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered October 22, 2009, convicting defendant, after a jury trial, of attempted murder in the second degree, attempted assault in the first degree, assault in the second degree (two counts), robbery in the first degree, criminal possession of a weapon in the second degree and burglary in the second degree, and sentencing him to an aggregate term of 17 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's credibility determinations, including its resolution of an inconsistency between an eyewitness's testimony and his alleged prior statements. The element of homicidal intent could be inferred from defendant's act of firing two shots at the victim at close range, striking him in the shoulder (see e.g. People v Cabassa, 79 NY2d 722, 728 , cert denied sub nom. Lind v New York, 506 US 1011 ).
Defendant did not preserve any of his challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 , lv denied 91 NY2d 976 ; People v D'Alessandro, 184 AD2d 114, 118-119 , lv denied 81 NY2d 884 ). While the prosecutor's comment about sending a "message" should have been avoided, that isolated comment could not have deprived defendant of a fair trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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