Opinion
June 20, 1991
Appeal from the Supreme Court, Bronx County (Edward Davidowitz, J.).
After a gunpoint robbery of a taxicab driver, defendant was apprehended by other taxicab drivers. While he was restrained by police officers, a search revealed a vial of crack in his pocket. The police were directed by the people assembled to look down the shoulder of the road where the gun was retrieved and thereafter identified by the complainant. At the precinct, defendant made certain admissions.
The court did not improperly join the drug possession count with the robbery and weapon possession count (CPL 200.20 [b]), as the evidence of recovery of the crack was intimately related to the evidence of the robbery (see, People v Bongarzone, 69 N.Y.2d 892). Further, the proof of possession was admissible to reveal the circumstances surrounding the arrest and complete the narrative of the case (see, People v Vega, 169 A.D.2d 586, 587).
Although defendant contends that the failure by counsel to move to sever the drug possession count deprived him of effective assistance of counsel, such failure does not render counsel ineffective "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 N.Y.2d 137, 147). A review of the record reveals counsel's overall representation to be meaningful.
Nor was the prosecutor's summation improper as the comments were in response to arguments raised by the defense in summation (People v Morgan, 66 N.Y.2d 255, 259), and attacks by defense attorney on the credibility of the police witnesses (People v Devonish, 159 A.D.2d 320). Further, a prosecutor is entitled to a "broad bounds of rhetorical comment" during closing arguments (People v Galloway, 54 N.Y.2d 396, 399). Although the prosecutor used the word "conspiracy" to characterize the defense attorney, the court clarified the comments by instructing the jury, i.e., that counsel's remarks were not evidence (People v Pittman, 158 A.D.2d 345). It is presumed the jury followed the instructions (People v Berg, 59 N.Y.2d 294, 299-300). Because of the overwhelming evidence of guilt, any error must be considered harmless (People v Crimmins, 36 N.Y.2d 230).
Finally, contrary to defendant's arguments pro se, guilt was proven beyond a reasonable doubt by overwhelming evidence. A verdict is supported by legally sufficient evidence if "`after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v Contes, 60 N.Y.2d 620, 621). Here, there is no question of misidentification, the gun used was positively identified, and defendant made incriminating statements. Although defendant attacks the credibility of the complainant, credibility is a jury determination (People v Bleakley, 69 N.Y.2d 490, 495). Nor was it improper for the officers to testify that they were directed to the location of the weapon by others on the scene (see, People v Casanova, 160 A.D.2d 394).
Concur — Sullivan, J.P., Milonas, Ross, Kassal and Rubin, JJ.