PEOPLE v. BRYANT

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Anthony BRYANT, Defendant-Appellant.

Decided: January 23, 2007

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, MALONE, JJ. Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jennifer L. Lowry of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 21, 2003, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, attempted robbery in the first degree (two counts), attempted robbery in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 22 years, unanimously affirmed.

 Defendant's challenges to the sufficiency of the evidence are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the verdict was supported by legally sufficient evidence.   We further find that the verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility.   The attempted robbery charges were established by evidence that defendant and an accomplice demanded, at gunpoint, a large sum of money that they believed the victim possessed.   When the victim revealed that the money was gone, defendant shot him in the head at close range and left him lying unconscious on the floor, thereby evincing an intent to kill (see e.g. People v. Holmes, 260 A.D.2d 942, 690 N.Y.S.2d 292 [1999], lv. denied 93 N.Y.2d 1020, 697 N.Y.S.2d 578, 719 N.E.2d 939 [1999] ).   The fact that defendant fired only one shot does not warrant a different conclusion.

 Defendant's arguments concerning the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1977], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).