PEOPLE v. MORUSMA (2007)

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered August 15, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the second and third degrees and unlawful wearing of a body vest, and sentencing him to an aggregate term of 10 years, unanimously affirmed.

 Defendant's legal sufficiency argument is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would we would find that the verdict was supported by legally sufficient evidence.   We also find that it was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Most of the asserted inconsistencies, such as whether or not defendant wore a hooded sweatshirt, were immaterial to the verdict as there was no issue of identity.

 The court had no obligation to submit to the jury, sua sponte, the lesser included offense of attempted assault in the second degree (CPL 300.50[2] ).   Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal as it involves matters outside the record concerning the reasons for counsel's tactical decision not to request this lesser included charge (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).   On the existing record, to the extent it permits review, there appear to be reasonable explanations for this decision, and, in any event, there was no reasonable view of the evidence that defendant only intended to cause physical injury but not serious physical injury when he shot the victim in the chest at close range.   We have considered and rejected defendant's remaining pro se claims.

We perceive no basis for reducing the sentence.