Opinion
October 19, 1987
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (People v. Benzinger, 36 N.Y.2d 29), we find the evidence against the defendant to be legally sufficient. Further, upon the exercise of our factual review power, and bearing in mind that the credibility of witnesses and the weight be accorded their testimony are generally matters for resolution by the jury (see, People v. Bauer, 113 A.D.2d 543, lv denied 67 N.Y.2d 648, 880), we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15; see also, People v. Medina, 133 A.D.2d 783 [decided herewith]).
Where proof against the two defendants is to be supplied by the same evidence, only the most cogent reasons warrant a severance (People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905). Since the evidence against the defendant and his codefendant in this case was virtually identical, we discern no error in the denial of the motion for separate trials (see, e.g., People v. Cruz, 66 N.Y.2d 61, revd on other grounds Cruz v. New York, 481 US ___, 107 S Ct 1714). Similarly unavailing is the defendant's argument that he was prejudiced by the admission in evidence of his codefendant's statement. The codefendant testified at trial, thereby preserving the defendant's right to confrontation (see, Cruz v. New York, supra). In addition, the jury was properly instructed not to consider the codefendant's out-of-court statement against the defendant.
Finally, the prosecutor's summation can be evaluated fairly only in comparison to that of the defense (see, People v Singleton, 121 A.D.2d 752, lv denied 68 N.Y.2d 918). In this case, the defendant repeatedly challenged the credibility of the People's witness. The record indicates that the prosecutor's comments constituted a fair response to the defendant's summation and did not deny him a fair trial (see, People v. Medina, supra; People v. Hopkins, 58 N.Y.2d 1079, 1083). Kunzeman, J.P., Kooper, Spatt and Sullivan, JJ., concur.