Opinion
February 27, 1992
Appeal from the Supreme Court, New York County (Herbert J. Adlerberg, J.).
Two indictments charging defendant with separate shootings several weeks apart were joined pursuant to CPL 200.20 (2) (c) on the ground that they involved the same or similar statutory provisions. Defendant argues that the indictments should not have been joined because of a substantial possibility that the jury would find him guilty of both homicides based on the cumulative effect of the combined evidence rather than on separate analyses of the evidence relating to each crime. We disagree.
The only commonality in the evidence was a witness who circumstantially connected defendant to both crimes, and heard him make inculpatory remarks concerning each. The proof with respect to both of the crimes was relatively uncomplicated, well established, and easily amenable to separate consideration by the jury (see, People v. Lane, 56 N.Y.2d 1; People v. Streitferdt, 169 A.D.2d 171, lv denied 78 N.Y.2d 1015). The court carefully instructed the jury on the need to evaluate each separate crime, instructions to which defendant did not object and the jury is presumed to have followed (People v Berg, 59 N.Y.2d 294, 299-300; People v. Casiano, 138 A.D.2d 892, 894, lv denied 72 N.Y.2d 857).
Defendant's contention that the court erred in charging the jury that "[t]he identity of a defendant as the individual who committed the crime must be demonstrated with sufficient certainty as to preclude a reasonable possibility of mistake" is unpreserved, and we decline to review in the interest of justice in view of the overwhelming evidence of guilt of both crimes (see, People v. Richardson, 172 A.D.2d 438, lv denied 78 N.Y.2d 925). In any event, were we to review the issue in the interest of justice, we would find that although such "reasonable certainty" language is objectionable (supra), the charge as a whole nevertheless conveyed the appropriate standard of proof. We would make a similar finding with respect to defendant's unpreserved objection to the court's "two inference" instruction (see, People v. Cruz, 172 A.D.2d 383, lv denied 78 N.Y.2d 964).
Concur — Milonas, J.P., Kupferman, Ross and Smith, JJ.