Opinion
July 22, 1985
Appeal from the Supreme Court, Queens County (O'Brien, J.).
Judgment affirmed.
Assuming, arguendo, that the testimony of Detective Scarmardella regarding the issuance of a "wanted card" for the defendant as a result of his conversation with one of the complainants constituted improper bolstering of the latter's identification testimony ( cf, People v. Cruz, 100 A.D.2d 882, 883; People v. Brown, 91 A.D.2d 639; People v. Tufano, 69 A.D.2d 826; People v. Felder, 108 A.D.2d 869), Criminal Term's ultimate decision to strike that testimony and the delivery of an appropriate curative instruction served to alleviate any prejudice which might conceivably have been generated thereby. In addition, the proof of defendant's guilt was overwhelming.
While it clearly appears that the trial court erred in its charge on reasonable doubt by equating proof "beyond a reasonable doubt" with proof to a "moral certainty", and by informing the jurors that they must vote to acquit if their "minds are wavering" or if the "scales are even" ( see, People v. Dee, 106 A.D.2d 582; People v. Wade, 99 A.D.2d 474; People v. Ortiz, 92 A.D.2d 595), the absence of any proper objection on the part of the defendant constituted a failure to preserve this issue for our review as a matter of law (CPL 470.05). In any case, since a reading of the entire charge indicates that the concept of reasonable doubt was properly explained to the jury, the error does not warrant reversal in the interests of justice ( see, People v. Dee, supra; People v. Turrell, 66 A.D.2d 862, affd 50 N.Y.2d 400; People v. Ortiz, supra; People v Patterson, 76 A.D.2d 891).
We have considered defendant's remaining contentions and find them to be without merit. Mangano, J.P., Gibbons, Niehoff and Lawrence, JJ., concur.