PEOPLE v. ORTEGA (1999)

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered September 10, 1996, convicting defendant, after a jury trial, of attempted murder in the second degree (2 counts) and riot in the first degree, and sentencing him to consecutive terms of 8 1/313 to 25 years and 8 to 24 years on the attempted murder convictions, to run concurrently with a term of 1 1/313 to 4 years on the riot conviction, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   We see no reason to disturb the determinations of the jury concerning credibility and reliability of the identification testimony.   There was ample evidence establishing a community of purpose between defendant and his codefendant, including the fact that defendant continued his assault even as his codefendant stabbed one victim with an ice pick furnished to him by defendant, and that defendant later took back and used the ice pick against the other victim (compare, People v. Jones, 191 A.D.2d 279, 595 N.Y.S.2d 35, with People v. Rivera, 176 A.D.2d 510, 575 N.Y.S.2d 7, lv. denied 79 N.Y.2d 863, 580 N.Y.S.2d 735, 588 N.E.2d 770).

 “The prosecutor could properly comment on summation as to the failure of defendant, who called witnesses in his defense, to call certain other significant witnesses” (People v. Garcia, 256 A.D.2d 77, 682 N.Y.S.2d 144, citing People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805).   In addition, the People's summation did not impinge upon defendant's right not to testify.

Defendant's motion to suppress identification testimony was properly denied.   The circumstances under which the showup was conducted were not unduly suggestive (see, People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654).   Defendant's remaining arguments for suppression of the identification are unpreserved, and we decline to review them in the interest of justice.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.