The People of the State of New York v. Walter Murray

Judgment, Supreme Court, New York County (Charles J. Tejada, J), rendered January 24, 2003, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including the inability of the police to recover the broken bottle used in the robbery, were properly considered by the jury and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94 [1903]).

Defendant’s challenges to 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 find that the challenged remarks generally constituted fair comment on the evidence, made in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Concur—Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.