Opinion
December 21, 1987
Appeal from the Supreme Court, Kings County (Bourgeois, J.).
Ordered that the judgment is affirmed.
The defendant's claim of repugnancy in the verdict was waived for failure to object to the verdict prior to the discharge of the jury (see, People v Alfaro, 66 N.Y.2d 985; People v Stahl, 53 N.Y.2d 1048; People v Kramer, 123 A.D.2d 786, lv denied 69 N.Y.2d 713). Even had this issue been properly preserved for appellate review, we would reject the defendant's argument that his acquittal on the robbery counts renders his convictions of burglary and felony murder inconsistent. As declared by the Court of Appeals in People v Tucker ( 55 N.Y.2d 1, 4, rearg denied 55 N.Y.2d 1039): "When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate." As we find that the court correctly charged the jury that robbery and burglary were separate and independent crimes, the jury's acquittal as to the robbery counts did not vitiate the jury's findings of guilt as to the other counts. A guilty verdict on one count should only be set aside as repugnant if it is inherently inconsistent with a verdict of not guilty on another count, and when the crimes charged in one count contain the same elements as the other count (see, People v James, 112 A.D.2d 380; People v Rivera, 112 A.D.2d 327).
With respect to the defendant's remaining contentions, we note that no timely objection was made and therefore they are not preserved for appellate review (CPL 470.05; People v Contes, 60 N.Y. 620). In any event, the court was not under a duty to marshal the evidence (see, CPL 300.10; People v Culhane, 45 N.Y.2d 757, cert denied 439 U.S. 1047; People v Linton, 64 N.Y.2d 665) and the prosecutor's comments did not exceed "the broad bounds of rhetorical comment permissible in closing argument" (People v Galloway, 54 N.Y.2d 396, 399). A review of the record clearly indicates that the defendant's counsel's representation did not fall below the standard of "meaningful representation" articulated in People v Baldi ( 54 N.Y.2d 137, 147); therefore his pro se claim of denial of due process by virtue of inadequate representation cannot succeed. Even if the defendant's allegations of error had been raised at trial and thus preserved, the outcome would remain unchanged. Weinstein, J.P., Rubin, Kooper and Sullivan, JJ., concur.