Opinion
November 30, 1993
Appeal from the Supreme Court, New York County (Mary McGowan Davis, J.).
The People's ballistics expert testified that a shell from the sawed off shotgun which defendant fired from a distance of 30 to 40 feet from his intended victim contained hundreds of pellets emitted with each round and that the weapon was designed to spread those shots as they travelled further from the barrel. Therefore, since the shotgun was not capable of the pinpoint wound-but-not-kill accuracy claimed by defendant, his attorney's failure to request submission of attempted assault in the second degree as a lesser included offense cannot be said to have amounted to ineffective assistance of counsel, particularly since there is no allegation of inadequate representation in any other respect.
Defendant's remaining points are also without merit. A confirmatory identification by a trained police officer shortly after the occurrence of a crime and near where it was committed is sufficiently reliable to be admissible at trial (People v Wharton, 74 N.Y.2d 921). As for defendant's assertion of prosecutorial misconduct, isolated improprieties during summation are generally not sufficient to justify reversal (see, United States v Modica, 663 F.2d 1173, cert denied 456 U.S. 989), and, in any event, most of the challenged comments were fair responses to the closing arguments of defendant's attorney (see, People v Halm, 81 N.Y.2d 819; People v McIntyre, 177 A.D.2d 255, lv denied 79 N.Y.2d 950).
Concur — Rosenberger, J.P., Ellerin, Ross and Asch, JJ.