PEOPLE v. GARNER (2006)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kerins, J.), rendered November 21, 2002, convicting him of attempted murder in the first degree, assault in the first degree, robbery in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The record of the Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268), supports the hearing court's determination that the victim, who was friendly with the defendant for almost two years, was sufficiently familiar with the defendant that his photographic identification was merely confirmatory (see People v. Rodriguez, supra;  People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924;  People v. Simmons, 247 A.D.2d 494, 667 N.Y.S.2d 945).

 The defendant's arguments regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Dien, 77 N.Y.2d 885, 568 N.Y.S.2d 899, 571 N.E.2d 69;  People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111).   In any event, the challenged remarks either were fair comment on the evidence, permissive rhetorical comment, or responsive to the defense counsel's summation (see People v. Smith, 21 A.D.3d 386, 798 N.Y.S.2d 911;  People v. Filipe, 7 A.D.3d 539, 776 N.Y.S.2d 94).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.