People v. Jenkins

166 A.D.2d 237, 560 N.Y.S.2d 630, 1990 N.Y. App. Div. LEXIS 11721

Opinion

Judgment, Supreme Court, New York County (Joan Carey, J.), rendered March 14, 1989, convicting defendant, after a jury trial, of third degree robbery and fourth degree grand larceny and sentencing him to concurrent indeterminate prison terms of 2 to 4 years and IV2 to 3 years, respectively, unanimously affirmed.

On September 21, 1988, in the early morning hours, defendant approached complainant as he was walking home on West 125th Street and forcibly stole certain jewelry. Defendant was arrested a short while after the incident near the vicinity of the robbery and was unhesitatingly identified by the complainant.

On appeal defendant, who is black, maintains that the trial court erred in denying his request to instruct the jury that the "fact that defendant and the identification witness are of a different race is merely one of the factors that they may consider in determining the accuracy of the identification”. A defendant is not deprived of a fair trial when the court declines a request for a cross-racial identification charge (People v Marshall, 160 AD2d 662 [see briefs on appeal]), especially where, as here, the court’s general instructions, as a whole, conveyed the appropriate applicable legal principles (see, People v Whalen, 59 NY2d 273, 279). Concur—Ross, J. P., Rosenberger, Asch, Kassal and Wallach, JJ.