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

The PEOPLE of the State of New York, Respondent, v. Wilson RIVERS, Defendant-Appellant.

Decided: April 26, 2001

ROSENBERGER, J.P., MAZZARELLI, ANDRIAS, ELLERIN and LERNER, JJ. Danielle L. Attias, for Respondent. Carl S. Kaplan, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered June 11, 1999, convicting defendant, after a jury trial, of attempted assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning identification.   The circumstantial evidence clearly established that defendant was the person who had attempted to inflict serious physical injury upon the victim by firing a shot at him and who had possessed the recovered loaded weapon (see, People v. Cantres, 238 A.D.2d 56, 667 N.Y.S.2d 36, lv. denied 91 N.Y.2d 971, 672 N.Y.S.2d 850, 695 N.E.2d 719), and we have considered and rejected defendant's various arguments to the contrary.   The man who accosted the victim was the only other person in the immediate area when the two exchanged heated words, and the victim heard a loud “pop” sound and felt something hitting his body only seconds after he had turned away from that man and begun to climb the station staircase.   The description that the victim immediately provided to an officer matched that of defendant, whom several officers saw running from the scene and being apprehended, after a violent struggle, a short distance away.   The victim then positively identified defendant at the arrest site (and at trial) as being the man with whom he had argued just before the shooting.   Finally, a loaded weapon and a shell casing were recovered right near the station from which defendant was seen fleeing.