Opinion
October 5, 1987
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
We find the identifications were not tainted by the fact that the defendant was handcuffed in the backseat of a police car when he was identified by both victims simultaneously. Showup identifications made shortly after a crime are permitted by the courts in that they are "based on fresh recollections of recent events, they insure reliable identifications of perpetrators and prompt release of innocent suspects" (People v. Soto, 87 A.D.2d 618, 619; see also, People v. Smith, 63 A.D.2d 754). While simultaneous showup identifications are generally frowned upon (People v. Adams, 53 N.Y.2d 241, 249), they are considered appropriate if the interest of promptness is the underlying reason (People v. Love, 57 N.Y.2d 1023, 1024-1025). Nor was the showup unduly suggestive in light of the fact that the defendant was handcuffed when the witnesses viewed him. "Although it may be undesirable to display a suspect while he is handcuffed * * * procedures that are less than ideal are tolerable in the interest of prompt identification" (People v. Johnson, 102 A.D.2d 616, 627; see also, People v. Thomas, 105 A.D.2d 1098). Here, there was sufficient interest in the speed of the identification to warrant a simultaneous identification while the suspect was still handcuffed and seated in a police car.
We also do not find merit in the defendant's claim that the People failed to prove his guilt beyond a reasonable doubt. He claims that one witness testified that the assailant was wearing beige shorts, the other witness testified the assailant wore beige pants cut below the knee and the arresting officer's report stated the defendant was wearing beige pants. This variation in testimony was presented to the jury and resolved against the defendant. We will not disturb their decision. Upon the exercise of our factual review power, 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).
The defendant's remaining contentions addressed to the charge have not been preserved for appellate review (see, People v Allen, 69 N.Y.2d 915; People v. Nuccie, 57 N.Y.2d 818; People v Durkin, 132 A.D.2d 668). Even if we were to exercise our interest of justice jurisdiction, we would find them to be without merit. The phrase "50-50" in that portion of the charge dealing with reasonable doubt was ill chosen, but the charge, read as a whole, adequately explained the quantum of proof necessary in a criminal trial (see, People v. Canty, 60 N.Y.2d 830; People v. Townes, 104 A.D.2d 1057; People v. Cruz, 97 A.D.2d 518). The charge on the presumption of innocence was not confusing or ambiguous. Lawrence, J.P., Eiber, Spatt and Sullivan, JJ., concur.