People v. Floyd

150 A.D.2d 486, 541 N.Y.S.2d 225, 1989 N.Y. App. Div. LEXIS 6398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1989
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered July 20, 1984, convicting him of criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court did not err in refusing to give the requested "Daniels-type” charge on identification (see, People v Daniels, 88 AD2d 392; 1 CJI[NY] 10.01 part A). Because the defendant was known to the two witnesses that identified him at trial, the question of the defendant’s guilt turned on the credibility of those witnesses and not upon the accuracy of their observations of the defendant during the commission of the crime (see, People v Wade, 146 AD2d 589; People v Blake, 124 AD2d 666; People v Derhi, 110 AD2d 709). Thus, the court was required to give only a general instruction on weighing the witnesses’ credibility and to state that identification must be proven beyond a reasonable doubt (see, People v Whalen, 59 NY2d 273; People v Beasley, 114 AD 2d 415). The court did this and more. Indeed, the charge delivered was identical to the expansive identification charge requested, with two modifications which did not change its meaning or import.

We have examined the defendant’s remaining contention and find it to be unpreserved for appellate review and, in any event, without merit. Mangano, J. P., Thompson, Bracken and Fiber, JJ., concur.