People v. Eligios

158 A.D.2d 257, 550 N.Y.S.2d 661, 1990 N.Y. App. Div. LEXIS 984

Opinion

Defendant was found guilty of possession and sale of a controlled substance arising out of two sales of cocaine to an undercover officer in an apartment. His defense at trial was that the seller of the drugs was another person who was not apprehended. The arresting officers testified that no other person fitting defendant’s description and attire was present in the apartment, and thereby directly challenged his mistaken identification defense and placed the issue squarely for the jury’s determination. We find no reason to disturb the jury’s finding adverse to defendant on this issue. Defendant’s contention that the trial court’s charge on identification was inadequate because it failed to instruct the jury that the People must prove identity beyond a reasonable doubt (citing People v Whalen, 59 NY2d 273) was not preserved for appellate review as no objection was made at trial (CPL 470.05). In any event, since the question of defendant’s guilt hinged largely upon the credibility of the undercover officer’s testimony, and not upon the nature and quality of his observations of defendant, as such, the charge on the issue of identification, as given, was adequate (People v Blake, 124 AD2d 666). Concur —Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ.