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

The PEOPLE of the State of New York, Respondent, v. Rickie SCOTT, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND GREEN, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, following a jury trial, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ), robbery in the first degree (§ 160.15[4] ) and menacing in the second degree (§ 120.14[1] ), arising out of three separate incidents.   Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of attempted murder and assault (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Viewing the evidence in light of the elements of attempted murder and assault as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict with respect to those crimes is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant contends that County Court erred in refusing to suppress the in-court identification of an eye-witness to the shooting incident who had identified him in a photo array because the police compiled the photo array based upon their own suspicion of the perpetrator rather than a description given by the shooting victim.   We reject that contention.   The record of the suppression hearing supports the court's determination that the photo array was “ ‘not so suggestive as to create the substantial likelihood that defendant would be misidentified’ ” (People v. Johnson, 52 A.D.3d 1286, 1286, 859 N.Y.S.2d 539, lv. denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660;  see People v. Munoz, 223 A.D.2d 370, 636 N.Y.S.2d 313, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623).

 Contrary to the further contention of defendant, the court properly denied his motion to sever the menacing count.   That count was properly joinable with the remaining counts of the indictment pursuant to CPL 200.20(2)(b) inasmuch as proof of each count “would be material and admissible as evidence in chief upon a trial” of the other counts (id.;   see People v. Lee, 275 A.D.2d 995, 996, 714 N.Y.S.2d 177, lv. denied 95 N.Y.2d 966, 722 N.Y.S.2d 483, 745 N.E.2d 403).

 We reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct on summation.  “Although the prosecutor improperly made a ‘safe streets' comment by urging the jury to do justice” in order to prevent the escalation of crime in the neighborhood where the shooting occurred, we conclude that the prosecutor's “isolated comment was not so egregious as to deprive defendant of a fair trial” (People v. Tolliver, 267 A.D.2d 1007, 1008, 701 N.Y.S.2d 206, lv. denied 94 N.Y.2d 908, 707 N.Y.S.2d 392, 728 N.E.2d 991).  “The remaining comments challenged by defendant were fair comment on the evidence or fair responses to the comments of defense counsel and did not constitute [prosecutorial] misconduct” (id.;   see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).

Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.