Opinion
November 10, 1986
Appeal from the Supreme Court, Kings County (Murray, J.).
Ordered that the judgment is affirmed.
In reviewing the evidence underlying a criminal conviction the standard to be applied is whether, after viewing the evidence in the light most favorable to the People, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt (People v Contes, 60 N.Y.2d 620; People v Herriot, 110 A.D.2d 851). As the record on appeal indicates, the jury in the instant case was well aware of all the evidence and decided the credibility issues in favor of the People. It is well settled that the resolution of questions relating to the credibility of witnesses is a proper function of the trier of fact and should not be overturned lightly on appeal (People v Bussey, 111 A.D.2d 403; People v Gross, 111 A.D.2d 873). The fact that only one witness was able to identify the defendant does not render the evidence less than sufficient (see, People v Arroyo, 54 N.Y.2d 567, cert denied 456 U.S. 979; People v Jackson, 114 A.D.2d 858).
Further, the three-year delay between the date of the crime and the date of the defendant's arrest did not deprive him of his right to due process. Where there is good cause for delay in prosecuting a defendant such delay does not constitute a violation of due process (People v Singer, 44 N.Y.2d 241). In the case at bar the police conducted a vigorous investigation in their diligent effort to locate the defendant (see, People v Mitchell, 84 A.D.2d 822). There is nothing in the record to suggest that the police delayed arresting the defendant for tactical advantage or that they could have apprehended him sooner but did not (see, People v Bryant, 65 A.D.2d 333, appeal dismissed 46 N.Y.2d 1037). Furthermore, the defendant has failed to show prejudice based on the delay (see, People v Fuller, 57 N.Y.2d 152; People v Bonsauger, 91 A.D.2d 1001). The seriousness of the crimes, which involves two murders, also supports a finding that the delay in arrest did not deprive defendant of his due process rights (see, People v Bryant, supra).
The defendant's claim that he was prejudiced by the fact that the prosecutor did not conduct a second out-of-court identification procedure following his arrest was not preserved for appellate review (see, CPL 470.05). In any event, a second identification procedure is not mandated by either Federal or State law (see, e.g., United States v Brown, 699 F.2d 585; People v Cicero, 119 A.D.2d 687).
Moreover, notwithstanding the defendant's assertions as to counsel's ineffectiveness, a review of the record reveals that trial counsel was an experienced and competent criminal lawyer who made appropriate pretrial motions, conducted the defense at pretrial hearings and, during the trial itself, engaged in extensive cross-examination of the prosecution witnesses, prepared and presented witnesses in the defendant's behalf and made objections to the presentation of evidence in order to fully protect his client's rights (see, People v Baldi, 54 N.Y.2d 137; People v Droz, 39 N.Y.2d 457).
The defendant failed to preserve for appellate review the issue of the propriety of either the trial court's or the prosecutor's comments during defense summation (see, CPL 470.05). The prosecutor's interruptions merely requested proper instruction from the court which the court promptly offered. Upon the record it is clear that the court's comments were innocuous and "a legitimate exercise of the court's prerogative to control, the proceedings before it" (People v Fernandez, 110 A.D.2d 657, 658). Similarly, no exception was taken to any of the comments made by the prosecutor during his summation, and therefore the issue is not preserved for consideration on appeal (see, People v Dordal, 55 N.Y.2d 954; People v Jones, 89 A.D.2d 875). Furthermore, the prosecutor's remarks were fair comments on the evidence and did not exceed the bounds of comment permissible on summation (see, People v Galloway, 54 N.Y.2d 396; People v Lawrence, 91 A.D.2d 642).
The sentence imposed cannot be termed either harsh or excessive under the facts of this case (see, People v Farrar, 52 N.Y.2d 302). We have reviewed defendant's other contentions and find them to be without merit. Mollen, P.J., Mangano, Weinstein and Niehoff, JJ., concur.