The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ). Contrary to defendant's contention, the conviction is supported by legally sufficientevidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). With respect to the issue of intent, we note that “ ‘[i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime’ ” ( People v. Badger, 90 A.D.3d 1531, 1532, 935 N.Y.S.2d 416,lv. denied18 N.Y.3d 991;see People v. Cobb, 72 A.D.3d 1565, 1565, 900 N.Y.S.2d 224,lv. denied15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896). Here, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that it is legally sufficient to establish defendant's intent to kill. The People presented evidence that defendant and the victim quarreled immediately before the shooting ( see People v. Lucas, 94 A.D.3d 1441, 1441, 942 N.Y.S.2d 842;People v. Vigliotti, 270 A.D.2d 904, 904–905, 706 N.Y.S.2d 544,lv. denied95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426,rearg. denied95 N.Y.2d 970, 722 N.Y.S.2d 488, 745 N.E.2d 409;People v. Henning, 267 A.D.2d 1092, 701 N.Y.S.2d 566,lv. denied94 N.Y.2d 903, 707 N.Y.S.2d 388, 728 N.E.2d 987), and that defendant was only a few feet away from the victim when defendant pointed a gun at him and then fired that weapon ( see Lucas, 94 A.D.3d at 1441, 942 N.Y.S.2d 842;Cobb, 72 A.D.3d at 1565, 900 N.Y.S.2d 224;Vigliotti, 270 A.D.2d at 904–905, 706 N.Y.S.2d 544). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ).

Contrary to defendant's further contention, we conclude that Supreme Court properly denied his request for a missing witness charge with respect to the victim's cousin and friend, respectively. “ ‘The request, made after the close of the proof, was untimely’ ” ( People v. Garrido–Valdez, 299 A.D.2d 858, 859, 749 N.Y.S.2d 450,lv. denied99 N.Y.2d 614, 757 N.Y.S.2d 825, 787 N.E.2d 1171;see People v. Garner, 52 A.D.3d 1329, 1330, 860 N.Y.S.2d 371,lv. denied11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100). Defendant failed to preserve for our review his contention that he was deprived of a fair trial based on prosecutorial misconduct during summation ( see People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249;People v. Lyon, 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291,lv. denied15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324) and, in any event, that contention is without merit. To the extent that the prosecutor referred to the defense's failure to “contradict” the proof offered by the People and to the theories of the defense as a “distraction” and “nonsense,” we conclude that such conduct, although improper, was not so egregious as to deprive defendant of a fair trial ( see People v. Carr, 59 A.D.3d 945, 946, 872 N.Y.S.2d 626,affd.14 N.Y.3d 808, 899 N.Y.S.2d 746, 926 N.E.2d 253;see also McEathron, 86 A.D.3d at 916–917, 926 N.Y.S.2d 249;Lyon, 77 A.D.3d at 1339, 908 N.Y.S.2d 291).We reject defendant's contention that the People misstated the law on summation, and we note in any event that the court instructed the jury that it should accept the law as charged by the court ( see generally People v. Barnes, 80 N.Y.2d 867, 868, 587 N.Y.S.2d 597, 600 N.E.2d 228). The remaining instances of alleged prosecutorial misconduct on summation were “ ‘either a fair response to defense counsel's summation or fair comment on the evidence’ ” ( People v. Green, 60 A.D.3d 1320, 1322, 875 N.Y.S.2d 390,lv. denied12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077;see McEathron, 86 A.D.3d at 916, 926 N.Y.S.2d 249;Lyon, 77 A.D.3d at 1339, 908 N.Y.S.2d 291).

We also reject defendant's contention that he was denied effective assistance of counsel. Defendant contends that he received ineffective assistance based on his trial counsel's consent to a mistrial after a jury was selected and sworn in the first trial. We agree with defendant that, by consenting to a mistrial at that stage of the proceedings, defense counsel waived any claim of double jeopardy and foreclosed any challenge to the necessity of declaring a mistrial ( see generally People v. Catten, 69 N.Y.2d 547, 553–554, 516 N.Y.S.2d 186, 508 N.E.2d 920;People v. Ferguson, 67 N.Y.2d 383, 387–388, 502 N.Y.S.2d 972, 494 N.E.2d 77). Nevertheless, we reject defendant's contention that he was thereby denied effective assistance of counsel inasmuch as he failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). We also reject defendant's contention that he was denied effective assistance of counsel based on the failure of defense counsel to object to the allegedly improper comments made by the prosecutor on summation. As previously noted herein, “defendant was not denied a fair trial by [the prosecutor's improper commentary on summation relating to the defense], and the remaining instances of alleged prosecutorial misconduct on summation did not in fact constitute prosecutorial misconduct” ( Lyon, 77 A.D.3d at 1339, 908 N.Y.S.2d 291;see People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688,lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804;see generally Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.