Opinion
November 28, 1989
Appeal from the Supreme Court, Bronx County (Lawrence H. Bernstein, J.).
We reject defendant's claim that his guilt was not proven beyond a reasonable doubt because the undercover officers were without a sufficient opportunity to accurately identify him. The evidence adduced at trial established that the officers twice observed defendant as they passed him and his accomplice as they were attempting to break into the newsstand, once when they were within two or three feet of the men. Furthermore, their observations of criminal activity were corroborated by the motioning of the token booth clerk and defendant's flight and abandonment of the crowbar used in the attempted burglary. Under these circumstances, and recognizing that the weight accorded identification testimony is a question for the trier of fact (People v Mosley, 112 A.D.2d 812, 814), the jury could reasonably find that the People had proven defendant's guilt beyond a reasonable doubt and that the officers had accurately identified defendant as the perpetrator of the crime. (People v Contes, 60 N.Y.2d 620, 621.)
Defendant's claim that he was denied a fair trial because of the prosecutor's summation remarks which, inter alia, characterized defense counsel and defendant as being "creative" with the facts and suggested that the jury would have to believe the officers had fabricated their version of the events as a predicate to finding defendant not guilty, is without merit. The remarks were responsive to defense arguments (People v Morgan, 66 N.Y.2d 255, 259), and any error must, in light of the overwhelming evidence of defendant's guilt, be deemed harmless (People v Crimmins, 36 N.Y.2d 230, 242). Defendant's remaining arguments in this regard have not been preserved for review. Were we to address such arguments on their merits, we would find them to be without merit. Defendant's pro se arguments are likewise unpersuasive.
Concur — Kupferman, J.P., Ross, Asch, Kassal and Smith, JJ.