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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Errol ADAMS, a/k/a David Hunt, Appellant.

Decided: February 04, 1998

Before GREEN, J.P., and LAWTON, WISNER, BALIO and BOEHM, JJ. James M. Perry by Joseph Arbour, Lockport, for Appellant. Matthew J. Murphy, III by Thomas Brandt, Lockport, for Respondent.

 We reject the contention that defendant was denied effective assistance of counsel by counsel's failure to move for a severance, to conduct an adequate cross-examination of the victim and to speak on defendant's behalf at sentencing.   The indictment alleged that defendant and codefendant each intentionally aided the other in the commission of robbery in the first degree and burglary in the first degree.   At trial, defendant and codefendant asserted defenses that complemented each other with respect to accomplice liability, and defendant has failed to demonstrate circumstances that would have justified a severance (see, People v. Mahboubian, 74 N.Y.2d 174, 183-184, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Cruz, 66 N.Y.2d 61, 73-74, 495 N.Y.S.2d 14, 485 N.E.2d 221, revd. on other grounds 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162).   Counsel for defendant questioned the victim regarding the seriousness of his head injury and conducted an adequate cross-examination of the victim.   Speculation that a more vigorous cross-examination might have produced testimony concerning promises made by the People to procure the victim's testimony does not establish ineffectiveness of counsel (see, People v. Peralta, 225 A.D.2d 50, 53-54, 650 N.Y.S.2d 380, lv. denied 89 N.Y.2d 945, 655 N.Y.S.2d 896, 678 N.E.2d 509).   Absent some showing that, in addition to defendant's plea for leniency, counsel could have articulated some basis for leniency, the failure of counsel to speak on defendant's behalf at sentencing does not constitute ineffective assistance of counsel (see, People v. Millington, 111 A.D.2d 993, 994-995, 490 N.Y.S.2d 311).   In sum, we conclude that “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation,” establish that defendant received meaningful representation (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Defendant failed to preserve for our review his contentions, raised in his pro se supplemental brief, that County Court erred in failing to instruct the jury on the presumption of innocence (see, CPL 470.05 [2];  People v. Creech, 60 N.Y.2d 895, 896, 470 N.Y.S.2d 572, 458 N.E.2d 1249);  that the prosecutor violated the court's Sandoval ruling by cross-examining defendant regarding his prior involvement with drugs and the use of aliases (see, CPL 470.05[2];  People v. Jenkins, 216 A.D.2d 193, 628 N.Y.S.2d 669, lv. denied 86 N.Y.2d 843, 634 N.Y.S.2d 452, 658 N.E.2d 230;  People v. Cole, 216 A.D.2d 128, 129, 629 N.Y.S.2d 404, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777);  and that he was denied a fair trial by prosecutorial misconduct on summation (see, CPL 470.05[2];  People v. Lovett, 161 A.D.2d 1139, 558 N.Y.S.2d 861, lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 1000, 561 N.E.2d 900).   In any event, none of the contentions warrants reversal.   The failure to instruct the jury on the presumption of innocence constitutes harmless error;  proof of defendant's guilt is overwhelming, and the court gave a strong and unequivocal instruction regarding the People's burden of proof (see, People v. Guzman, 164 A.D.2d 828, 559 N.Y.S.2d 550;  People v. Creech, 101 A.D.2d 753, 754, 475 N.Y.S.2d 397).   Because defendant testified on direct examination regarding his drug habit, the prosecutor did not violate the court's Sandoval ruling by cross-examining defendant regarding his prior involvement with drugs (see, People v. Jenkins, supra;  People v. Cole, supra;  People v. Brugman, 199 A.D.2d 202, 203, 606 N.Y.S.2d 4, lv. denied 83 N.Y.2d 849, 612 N.Y.S.2d 381, 634 N.E.2d 982;  People v. Felder, 186 A.D.2d 1050, 588 N.Y.S.2d 491).   Nor did the prosecutor violate the Sandoval ruling by cross-examining defendant regarding his use of aliases (see, People v. Walker, 83 N.Y.2d 455, 463-464, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Huynh, 215 A.D.2d 168, 626 N.Y.S.2d 159).   The prosecutor's comments on summation regarding witness credibility were within the wide rhetorical bounds accorded to prosecutors in responding to the summation comments of defense counsel (see, People v. Boddie, 226 A.D.2d 120, 640 N.Y.S.2d 47, lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 387, 672 N.E.2d 613, 88 N.Y.2d 1067, 651 N.Y.S.2d 411, 674 N.E.2d 341;  People v. Johnson, 208 A.D.2d 562, 617 N.Y.S.2d 27, lv. denied 84 N.Y.2d 937, 621 N.Y.S.2d 534, 645 N.E.2d 1234), and, although the remarks regarding drive-by shootings arguably linked defendant improperly to the lifestyle of gang members involved in such shootings, those isolated remarks were not so egregious as to deprive defendant of a fair trial (see, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711).

We also reject the contention that the sentence is unduly harsh or severe.

Judgment unanimously affirmed.


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