People v. Figueroa

—Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered March 21, 1990, convicting defendant, after jury trial, of murder in the second degree and escape in the first degree, and sentencing him to consecutive terms of 25 years to life and 2Vz to 7 years, respectively, affirmed.

*104A review of the lineup photograph supports the hearing court’s finding that while all of the fillers were older than defendant, and their weights and heights varied, defendant and the fillers, all seated during the lineup procedure, were of such reasonably similar appearance that there was no substantial likelihood that defendant would be singled out for identification (People v Chipp, 75 NY2d 327, 336).

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), defendant’s guilt of the crimes charged was proven beyond a reasonable doubt (People v Bleakley, 69 NY2d 490). The jury’s determinations of fact and credibility, not unreasonable, will not be disturbed by this Court (People v Fonte, 159 AD2d 346, lv denied 76 NY2d 734).

Defendant’s claim of ineffective assistance of counsel is unsupported by any record that might have been developed had an appropriate after judgment motion been made pursuant to CPL 440.10 (People v Love, 57 NY2d 998, 1000). In any event, the available record indicates that trial counsel made appropriate pretrial and trial motions, thoroughly cross-examined the People’s witnesses in an attempt to attack credibility and reliability, and presented several witnesses in an attempt to show reasonable doubt, thereby providing meaningful representation (People v Baldi, 54 NY2d 137). Defendant has failed to show that there was no reasonable trial strategy involved in the procedural decisions of trial counsel that he now questions (see, People v Jones, 55 NY2d 771, 773). Additionally, we note that the outcome of this case did not stand or fall on trial counsel’s failure to formally move for dismissal at the close of the People’s case (see, People v Ferguson, 114 AD2d 226, 230).

The prosecutor’s summation comments constituted appropriate response to the defense summation (People v Marks, 6 NY2d 67, cert denied 362 US 912) and fair comment on the evidence, presented within the broad bounds of rhetorical comment permissible in closing argument (People v Galloway, 54 NY2d 396).

We perceive no abuse of discretion in sentencing, nor any ground for this Court to reduce the sentence in the interest of justice. Concur—Wallach, Asch, Nardelli and Williams, JJ.