Opinion
September 28, 1987
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
It was reasonable in this case for the trial court to conclude that inspecting the scene of the crime would be unlikely to help the jury in deciding any material issue of fact. Accordingly, it was a proper exercise of the court's discretion to deny the defendant's request to permit the jury to view the scene (see, CPL 270.50; People v. Hamilton, 112 A.D.2d 951; People v Rao, 107 A.D.2d 720; People v. McCurdy, 86 A.D.2d 493, 496).
The court extensively charged the jury on how to evaluate the identification testimony and instructed the jury that identification must be proven beyond a reasonable doubt. This clearly satisfied all legal requirements for an identification charge (see, People v. Whalen, 59 N.Y.2d 273, 279), and the failure to specifically instruct the jury that voice identification is inherently weaker than corporeal identification did not constitute error.
Although it was error to charge sexual abuse in the first degree as a lesser included offense of rape in the first degree (see, People v. Wheeler, 67 N.Y.2d 960, 962), the defendant waived any objection to this error by affirmatively requesting the submission of the former offense to the jury (CPL 300.50; People v. Shaffer, 66 N.Y.2d 663, 665; People v. Ford, 62 N.Y.2d 275, 282-283; People v. Weissinger, 104 A.D.2d 917, 918).
The court's Allen charge was brief and noncoercive. The court's remarks encouraging the jury to make a further effort to reach a verdict were properly balanced by statements telling them not to abandon their "conscientious convictions", and were in all respects appropriate under the circumstances (see, People v Pagan, 45 N.Y.2d 725, 727; People v. Eley, 121 A.D.2d 462, lv denied 68 N.Y.2d 769; People v. Lee, 118 A.D.2d 593, 594, lv denied 67 N.Y.2d 945).
We have reviewed the defendant's other contentions, including those set forth in his pro se brief, and find them to be without merit. Thompson, J.P., Bracken, Niehoff and Harwood, JJ., concur.