Opinion
September 20, 1990
Appeal from the Supreme Court, New York County, James Leff, J.
Defendant was convicted for his participation in a gang mugging in Washington Heights in which defendant and five others, brandishing pipes, sticks, and other weapons, robbed a solitary pedestrian. A patrol officer immediately apprehended two of the perpetrators; an investigation led to the arrest of defendant and two other perpetrators. After his arrest, defendant made inculpatory statements, and was positively identified by the victim in a lineup.
We have already affirmed the conviction of codefendant Abreu ( 143 A.D.2d 545, lv denied 73 N.Y.2d 852).
Defendant's challenge to the prosecutor's cross-examination of defendant is unpreserved as a matter of law. Defendant either failed to object (see, People v. Williams, 70 N.Y.2d 946) or failed to join in codefendant's objections (see, People v Buckley, 75 N.Y.2d 843). When the court sustained codefendant's objections, neither defendant nor codefendant requested curative instructions or moved for a mistrial. Defendant cannot now request reversal on this basis (People v. Medina, 53 N.Y.2d 951). There is no reason to review in the interest of justice. If we were to review, while we would note the impropriety of cross-examination which seeks to elicit from defendant a statement that the People's witnesses are lying (see, People v. Galloway, 54 N.Y.2d 396, 400; People v. Williams, 112 A.D.2d 177, 179; People v Rodriguez, 62 A.D.2d 929), we also note that the prosecutor here framed the question as to whether witnesses were incorrect. While the Fourth Department has considered any such distinction to be merely semantic (see, People v. Gibeau, 148 A.D.2d 923; People v Balkum, 94 A.D.2d 933), we would not have considered these questions to have required reversal. Defendant has also failed to preserve his challenges to the prosecutor's summation as a matter of law, and we similarly decline to address these issues.
On the basis of the hearing record (see, People v. Giles, 73 N.Y.2d 666, 671-672), defendant has not demonstrated that the lineup was unduly suggestive or improperly carried out (People v Chipp, 75 N.Y.2d 327). We note that defendant interjected an issue at trial that his haircut was significantly different from that of the other participants of the lineup. However, we do not disturb the determination of the hearing court (see, People v Prochilo, 41 N.Y.2d 759, 761). We also note that the evidence at trial established that defendant had not had this distinctive haircut at the time of the robbery. Nor do we find any infirmity in the in-court identification.
Appellate counsel's attempt to create a claim that a prosecution witness improperly testified as to an uncharged, unrelated mugging is incorrect. Although on cross-examination that witness changed the date, on redirect it became apparent that the witness was very confused. It was the jury's function to evaluate these contradictions and judge the weight of the evidence (People v. Mosley, 112 A.D.2d 812, affd 67 N.Y.2d 985). We do not find that there was sufficient indication that the witness, a friend of the defendant who was subpoenaed to appear at trial, was testifying to an unrelated mugging so as to require a conclusion that the trial court abused its discretion.
Finally, defendant failed to challenge the effectiveness of his trial representation in a postjudgment motion. We note the presumption that counsel acted with competence (People v. De La Hoz, 131 A.D.2d 154, lv dismissed 70 N.Y.2d 1005).
Concur — Kupferman, J.P., Ellerin, Wallach, Smith and Rubin, JJ.