Opinion
October 5, 1992
Appeal from the Supreme Court, Queens County (Farlo, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), we conclude that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, Penal Law § 160.15; People v Baskerville, 60 N.Y.2d 374). Further, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15; People v Garafolo, 44 A.D.2d 86, 88). The defendant's contention that the complainant's identification testimony was incredible as a matter of law is without merit. This testimony merely presented questions of the credibility of the witness and the weight to be accorded the testimonial evidence offered, which the jury resolved in the prosecution's favor (see, People v Gaimari, 176 N.Y. 84, 94; People v Mitchell, 167 A.D.2d 356).
We also reject the defendant's claim that the court's charge was insufficient as a matter of law. He argues that the court did not instruct the jury to "carefully scrutinize" the identification evidence. However, the record reveals that the court gave detailed instructions on the manner in which the jury was to evaluate the identification evidence and the charge was more than adequate in that regard (see, People v Whalen, 59 N.Y.2d 273, 279). Similarly unavailing is the defendant's contention that the court should not have referred to the People's identification evidence during this portion of the charge without also mentioning his rebuttal evidence. The defendant did not request that the court comment on his rebuttal evidence (see, CPL 470.05) and, thus, the contention is not preserved for appellate review. In any event, we find that in referring to the People's proof the court was doing no more than properly explaining the application of the law to the facts (CPL 300.10), and in so doing it sought to ensure that the jury would be cognizant of the subject matter of the identification instruction. The court was careful to clarify that the People contended that certain evidence established the identification. Accordingly, we conclude that no prejudice to the defendant resulted from the court's charge as given.
The defendant's claim that the court improperly gave an interested witness instruction is without merit. This instruction applied equally to both parties, and was appropriate as it was made in conjunction with the court's general charge on credibility (see, 1 CJI[NY] 7.03).
The defendant's remaining contentions are either unpreserved for appellate review or without merit (see, CPL 710.30; People v Delgado, 80 N.Y.2d 780; People v Johnston, 182 A.D.2d 707; People v Schiliro, 179 A.D.2d 693; People v Cuba, 154 A.D.2d 703; People v DeArmas, 106 A.D.2d 659, 660). Sullivan, J.P., Balletta, O'Brien and Copertino, JJ., concur.