There was legally sufficient evidence of guilt and the verdicts were not against the weight of the evidence. Initially, we find that the circumstantial evidence of Edwards's identity as one of the perpetrators was overwhelming.
Defendants argue that the death of the victim, a hostage shot by the police during a gunfight with defendants' accomplice, was not caused in immediate flight from the underlying bank robbery because the assailant was surrounded by police and was thus allegedly incapable of further flight. However, the shooting of the hostage occurred within minutes of the robbery, only a few blocks away from the bank branch. Officers were in hot pursuit of the assailant, who repeatedly fired shots at them as he fled. Realizing that his capture was imminent, the assailant grabbed the hostage in the hope that she would provide the leverage he needed to get away. Since the assailant obviously refused to surrender, it was reasonable for the jury to conclude that he was still in immediate flight from the underlying crime and attempting to thwart apprehension (compare,People v. Hernandez, 82 N.Y.2d 309, 319, with People v. Ruiz, 136 A.D.2d 493).
Contrary to defendant Edwards's argument, allegedly reckless police conduct did not constitute a supervening cause of the victim's death, breaking the chain of causation (see, People v. Griffin, 80 N.Y.2d 723,cert denied 510 U.S. 821). For purposes of this appeal, it is unnecessary to decide the lawfulness of the conduct of the police during the hostage situation. The possibility of a stray police bullet killing an innocent person in an exchange of gunfire was highly foreseeable under the circumstances, irrespective of whether or not the police were at fault. "Foreseeability does not mean that the result must be the most likely event" (People v. Hernandez, supra at 319).
Since defendants acquiesced in the court's compromise ruling and did nothing to alert the court that it had still not provided appropriate relief (see, People v. Santiago, 52 N.Y.2d 865), defendants failed to preserve their claim that the court improperly precluded cross-examination of a police officer concerning internal police guidelines on the use of deadly force and we decline to review it in the interest of justice. Were we to review this claim, we would find that, given the issues presented herein, there was no need for a trial within a trial on the subject of police conduct. In any event, the court allowed the defense wide latitude in which to delve into this subject.
The court properly denied defendant Gray's motion to suppress the bank manager's lineup identification. To the extent that any suggestiveness resulted from Gray being the only lineup participant wearing a tie, this situation "resulted from defendant's own actions" in refusing to remove that article of clothing, despite being advised to do so, and "cannot be imputed to law enforcement officials" (People v. Adams, 165 A.D.2d 760,lv denied 76 N.Y.2d 983). Moreover, at the time of the robbery, when the witness observed defendant, defendant was dressed as a security guard.
The record, read as a whole, establishes that there was no violation of defendant Gray's right to be present during conferences with prospective jurors.
We have considered and rejected defendants' remaining claims, including those contained in their pro se supplemental briefs.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.