People v. Smith (198 A.D.2d 187, 1993)

—Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered January 24, 1992, convicting defendant, after a jury trial, of attempted murder in the first degree, criminal use of a firearm in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 15 years to life, 4 to 12 years, 3 to 9 years, 3 to 9 years and 2 to 6 years, respectively, unanimously affirmed.

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 NY2d 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 F2d 1173, cert denied 456 US 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 NY2d 819; People v McIntyre, 177 AD2d 255, lv denied 79 NY2d 950). Concur — Rosenberger, J. P., Ellerin, Ross and Asch, JJ.