Opinion
October 3, 1995
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
We find nothing in defendant's brief that warrants a different result with respect to issues previously raised by the codefendant ( People v. Foy, 212 A.D.2d 446, lv denied 85 N.Y.2d 938).
Viewing the evidence in a light most favorable to the People and giving due deference to the jury's findings on credibility ( People v. Bleakley, 69 N.Y.2d 490, 495), defendant's guilt was proven beyond a reasonable doubt by overwhelming legally sufficient evidence, and the verdict was not against the weight of that evidence. Defendant's failure to tell arresting police that he was a victim, not a perpetrator, of a crime, as he testified at trial, was a "conspicuous absence" ( People v Smith, 172 A.D.2d 277, lv denied 78 N.Y.2d 974) and an "`unnatural' omission" ( People v. Hock, 183 A.D.2d 497, 498, lv denied 80 N.Y.2d 904) from his statement, concerning which he was properly cross-examined ( compare, People v. Conyers, 52 N.Y.2d 454, with People v. Savage, 50 N.Y.2d 673, cert denied 449 U.S. 1016). The civil complaint filed by the codefendant, which claimed that police at the scene of his arrest failed to prevent the complainant from stabbing him with a screwdriver, was properly admitted as rebuttal evidence to refute testimony that the stabbing arose as a result of a fare dispute, prior to any interaction with police. Defendant was not deprived of effective assistance of counsel simply because his attorney did not secure his right to testify before the Grand Jury. Upon the present record, such was a reasonable decision by counsel undoubtedly concerned with the perils of providing a prosecutor with potential impeachment material at trial ( see, People v. Bundy, 186 A.D.2d 357, lv denied 81 N.Y.2d 837; People v. Rivera, 71 N.Y.2d 705, 709). Defendant's claim that the prosecutor's summation denied him a fair trial is for the most part unpreserved, and in any event without merit. We have considered the defendant's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Williams, Tom and Mazzarelli, JJ.