Opinion
December 26, 1989
Appeal from the Supreme Court, Kings County (Berkowitz, J.).
Ordered that the judgment is affirmed.
The defendant contends that the People failed to prove his identity as one of the robbers. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the conviction. The People proved that the complainant and an eyewitness viewed the defendant just prior to and near the scene of the robbery, the complainant viewed his face as he fled from the scene and both the complainant and the eyewitnesses pointed him out to the police as he stood on a nearby street corner approximately 10 minutes after the crime. Moreover, the defendant was found in possession of a series of new $20 bills, much like the cash received by the complainant when he cashed his paycheck just before being robbed.
We agree with the defendant's contention that the portions of the charge in which the court equated proof beyond a reasonable doubt with proof to a "moral certainty", and told the jury that they must acquit if the "scales are even" were erroneous (see, People v Hewlett, 133 A.D.2d 417; People v La Rosa, 112 A.D.2d 954; People v Dee, 106 A.D.2d 582). However, no exception was taken to the charge and, when taken as a whole, the charge properly defined the concept of reasonable doubt. Thus, the error does not warrant reversal in the interest of justice (see, People v Patterson, 76 A.D.2d 891; People v Turrell, 66 A.D.2d 862, affd 50 N.Y.2d 400).
We have examined the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Mangano, J.P., Bracken, Kooper and Sullivan, JJ., concur.