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The PEOPLE of the State of New York, Respondent, v. Sheldon HARRIS, Defendant–Appellant.

Decided: October 23, 2012

TOM, J.P., ANDRIAS, SAXE, DeGRASSE, MANZANET–DANIELS, JJ. Roger Bennet Adler, P.C., New York (Roger Bennet Adler of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Judith S. Lieb, J.), rendered August 25, 2009, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree and endangering the welfare of a child, and sentencing him to a term of 25 years to life on the murder conviction, to run consecutively to concurrent terms on the remaining convictions of 22 years, 22 years, 15 years and 1 year, respectively, unanimously affirmed.

Defendant challenges the legal sufficiency of the evidence supporting his murder conviction. That claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning credibility and its weighing of expert testimony. The evidence supports the inference that defendant shot the deceased in the chest at close range, and that he did so with homicidal intent. Furthermore, defendant failed to prove by a preponderance of the evidence his extreme emotional disturbance defense.

The court properly exercised its discretion (see generally People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63 [2001] ) in allowing the medical examiner to express an opinion that the fatal bullet did not pass through an intermediate target, testimony that tended to refute a defense theory. Defendant argues that the witness was essentially testifying as a ballistics expert, without being qualified to do so. However, the opinion at issue did not require expertise in the workings of firearms and ammunition, but in the effect of gunshots on human tissue and the conclusions to be drawn therefrom. The medical examiner's extensive training and experience qualified her to provide such an opinion (see People v. Boozer, 298 A.D.2d 261, 748 N.Y.S.2d 379 [1st Dept. 2002], lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80 [2002] ). Moreover, any error in the admission of such testimony would be harmless given the overwhelming evidence of defendant's guilt under the murder count (see e.g. People v. Sorrentino, 93 A.D.3d 450, 939 N.Y.S.2d 452 [1st Dept. 2012] ).

The court also properly exercised its discretion in admitting a tape of a 911 call made during this incident, in which screams are heard. The tape was relevant to corroborate some of the testimony, and it was not so inflammatory that its prejudicial effect exceeded its probative value (see e.g. People v. Alvarez, 38 A.D.3d 930, 932, 830 N.Y.S.2d 848 [3d Dept. 2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ).

Defendant's challenges to the prosecutor's summation are unpreserved (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

We perceive no basis for reducing the sentence. We have considered and rejected defendant's legal arguments relating to his sentence, and his claim that the assault count should have been dismissed as a lesser included offense of attempted murder.