Judgment, Supreme Court, Bronx County (Joseph DiFede, J.), rendered June 23, 1982, convicting defendant following a jury trial of robbery in the first degree (Penal Law § 160.15) and sentencing him to a term of 2 to 6 years, affirmed.
Defendant was convicted of a knifepoint robbery committed on January 7, 1982, at about 5:30 p.m., in a brightly lit elevator, at 280 East 161st Street, in The Bronx. Mary McNeil was on her way to her daughter’s apartment, on the seventh floor of the building, when a 200-pound, 6-foot, black male, about 25 years of age, wearing thick glasses and an orange jump suit, forced open the elevator doors and, standing but one foot from complainant, held a knife to her throat and demanded her money: "Give me your money. I don’t want to hurt you.” Looking directly at defendant’s face, she handed over her pocketbook and watched as he took $17 from her wallet. He stopped the elevator at the fourth floor and tossed complainant out into the hall. The robbery lasted about 10 seconds. The police were summoned and the above description was furnished by complainant. Two and one-half weeks later, complainant identified defendant in a police lineup and she made a positive in-court identification. Orville Kerr, a security guard at the building, also testified that, about one-half hour before complainant came to the lobby to report the robbery, he observed defendant in the lobby, wearing an orange jump suit.
[813]*813The defense consisted of the testimony of defendant’s mother that he did not own an orange jump suit, had a space between his front teeth, a tooth missing on the side of his mouth and wore an earring. The arresting officer had testified that the description furnished by complainant did not include any mention of the condition of the assailant’s front teeth or whether he had a pierced ear.
The dissent concludes that defendant was deprived of his right to a fair trial (1) by the failure of the trial court to instruct the jury adequately on the issue of identification; (2) by the omission in the charge to the jurors that the prosecution had the burden of establishing each and every element of the crime by proof beyond a reasonable doubt; and (3) by an unfair and unbalanced marshaling of the evidence. To the contrary, the Trial Justice did instruct the jury that defendant was presumed to be innocent and that the burden was on the prosecution "to prove the charge against him by evidence beyond a reasonable doubt.” The record clearly shows that the prime issue was identification and, in its charge, the court repeatedly instructed the jurors that they were to determine whether defendant was the person who had committed the knifepoint robbery — "the question is, was this man, this defendant, the one who did that?”
"Well, if you believe Mary McNeil’s testimony that she was forced to give up property by the threatened use of a knife, again the question involved ultimately is, was this the man? Is this defendant the person who did this to Mary McNeil in the elevator of that building at or about 5:30 in the afternoon?”
Complainant was consistent in having identified defendant, both at the lineup and in court and she had more than a sufficient opportunity to observe him at close range, in the brightly lit elevator, during the robbery. Defendant was also identified by the security guard as having been in the lobby shortly prior to the crime. While the defense established that the description of defendant furnished by complainant following the crime did not include certain physical attributes and articles of clothing and there was further testimony by his mother that defendant did not own an orange jump suit, the credibility of the witnesses and the determination of identification posed factual issues for the jury. The positive lineup identification, buttressed by the in-court identification, sufficiently support the finding by the trier of the facts that it was the defendant and that the jury’s verdict that he was guilty was amply supported by the evidence.
[814]*814In any event, where identification and credibility are at issue, the jury in the first instance is responsible for such determinations, not an appellate court. (People v Siu Wah Tse, 91 AD2d 350, 352, Iv denied 59 NY2d 679.) Here, a review of the record establishes that the jury was made aware that the prime issue to be determined was whether defendant was the person who had robbed complainant and, while the trial court’s charge was not a model of clarity, under the circumstances of this case, it does not rise to the level of reversible error. The court summarized the evidence in this short trial and, on the issue of identification, instructed the jurors to evaluate the testimony by using their own experience, intelligence and common sense. Nor did defendant raise any objection at trial dealing with the charge on the issue of identification sufficient to preserve the objection for review on appeal. (CPL 470.05 [2]; People v Thomas, 50 NY2d 467, 471.)
The dissent finds error in the trial court’s instruction on reasonable doubt and the inclusion of the phrase, "if the evidence is equal on both sides, then obviously, the burden of convincing you beyond a reasonable doubt has not been met”. However, in People v Fox (72 AD2d 146, 147), we recognized that such an instruction is "formally correct”, although it was observed that it would be better to reduce the risk that a jury might draw the negative inference that if the scales were uneven, that would be sufficient to convict. Here, the trial court referred to "the evidence is evenly balanced” language in contrasting the heavy burden imposed upon the People in a criminal case (beyond a reasonable doubt) with the lighter burden in a civil case (fair preponderance of the evidence) and explained the nature and degree of "doubt” to be considered, based upon the evidence or lack of evidence, not speculation or prejudice. In doing so, the court defined "reasonable doubt” and instructed that, if the evidence were evenly balanced, the prosecution had not sustained its burden of proving each element of the crime beyond a reasonable doubt and, in such case, the jury would be obligated to return a verdict of not guilty. Unlike the situation in People v Wade (99 AD2d 474), the charge here did not create such a negative inference, so as to lead the jury to believe that something less than guilt beyond a reasonable doubt would be sufficient to sustain a conviction. Thus, under the circumstances in this case, the trial court’s instructions did not unduly prejudice defendant so as to require a new trial. (See, People v Thompson, 97 AD2d 554.) Contrary to the observation by our dissenting colleague, defendant did not object to the charge as improperly shifting [815]*815the burden of proof. The only objection to that portion of the charge was that it was confusing. Nor was the general exception to the charge as a whole at all sufficient to preserve the issue for appellate review. (See, People v West, 56 NY2d 662.)
Nor do we agree with the dissent that there was any error in the trial court’s marshaling of the evidence, which was unbiased and evenly balanced. In summarizing the evidence, the Trial Justice not only made reference to the proof which had been offered by the prosecution, but also pointed to the evidence on defendant’s case, including the testimony of his mother that he did not own an orange jump suit.
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Judgment, Supreme Court, Bronx County (Joseph DiFede, J.), rendered June 23, 1982, convicting defendant following a jury trial of robbery in the first degree (Penal Law § 160.15) and sentencing him to a term of 2 to 6 years, affirmed.
Defendant was convicted of a knifepoint robbery committed on January 7, 1982, at about 5:30 p.m., in a brightly lit elevator, at 280 East 161st Street, in The Bronx. Mary McNeil was on her way to her daughter’s apartment, on the seventh floor of the building, when a 200-pound, 6-foot, black male, about 25 years of age, wearing thick glasses and an orange jump suit, forced open the elevator doors and, standing but one foot from complainant, held a knife to her throat and demanded her money: "Give me your money. I don’t want to hurt you.” Looking directly at defendant’s face, she handed over her pocketbook and watched as he took $17 from her wallet. He stopped the elevator at the fourth floor and tossed complainant out into the hall. The robbery lasted about 10 seconds. The police were summoned and the above description was furnished by complainant. Two and one-half weeks later, complainant identified defendant in a police lineup and she made a positive in-court identification. Orville Kerr, a security guard at the building, also testified that, about one-half hour before complainant came to the lobby to report the robbery, he observed defendant in the lobby, wearing an orange jump suit.
[813]*813The defense consisted of the testimony of defendant’s mother that he did not own an orange jump suit, had a space between his front teeth, a tooth missing on the side of his mouth and wore an earring. The arresting officer had testified that the description furnished by complainant did not include any mention of the condition of the assailant’s front teeth or whether he had a pierced ear.
The dissent concludes that defendant was deprived of his right to a fair trial (1) by the failure of the trial court to instruct the jury adequately on the issue of identification; (2) by the omission in the charge to the jurors that the prosecution had the burden of establishing each and every element of the crime by proof beyond a reasonable doubt; and (3) by an unfair and unbalanced marshaling of the evidence. To the contrary, the Trial Justice did instruct the jury that defendant was presumed to be innocent and that the burden was on the prosecution "to prove the charge against him by evidence beyond a reasonable doubt.” The record clearly shows that the prime issue was identification and, in its charge, the court repeatedly instructed the jurors that they were to determine whether defendant was the person who had committed the knifepoint robbery — "the question is, was this man, this defendant, the one who did that?”
"Well, if you believe Mary McNeil’s testimony that she was forced to give up property by the threatened use of a knife, again the question involved ultimately is, was this the man? Is this defendant the person who did this to Mary McNeil in the elevator of that building at or about 5:30 in the afternoon?”
Complainant was consistent in having identified defendant, both at the lineup and in court and she had more than a sufficient opportunity to observe him at close range, in the brightly lit elevator, during the robbery. Defendant was also identified by the security guard as having been in the lobby shortly prior to the crime. While the defense established that the description of defendant furnished by complainant following the crime did not include certain physical attributes and articles of clothing and there was further testimony by his mother that defendant did not own an orange jump suit, the credibility of the witnesses and the determination of identification posed factual issues for the jury. The positive lineup identification, buttressed by the in-court identification, sufficiently support the finding by the trier of the facts that it was the defendant and that the jury’s verdict that he was guilty was amply supported by the evidence.
[814]*814In any event, where identification and credibility are at issue, the jury in the first instance is responsible for such determinations, not an appellate court. (People v Siu Wah Tse, 91 AD2d 350, 352, Iv denied 59 NY2d 679.) Here, a review of the record establishes that the jury was made aware that the prime issue to be determined was whether defendant was the person who had robbed complainant and, while the trial court’s charge was not a model of clarity, under the circumstances of this case, it does not rise to the level of reversible error. The court summarized the evidence in this short trial and, on the issue of identification, instructed the jurors to evaluate the testimony by using their own experience, intelligence and common sense. Nor did defendant raise any objection at trial dealing with the charge on the issue of identification sufficient to preserve the objection for review on appeal. (CPL 470.05 [2]; People v Thomas, 50 NY2d 467, 471.)
The dissent finds error in the trial court’s instruction on reasonable doubt and the inclusion of the phrase, "if the evidence is equal on both sides, then obviously, the burden of convincing you beyond a reasonable doubt has not been met”. However, in People v Fox (72 AD2d 146, 147), we recognized that such an instruction is "formally correct”, although it was observed that it would be better to reduce the risk that a jury might draw the negative inference that if the scales were uneven, that would be sufficient to convict. Here, the trial court referred to "the evidence is evenly balanced” language in contrasting the heavy burden imposed upon the People in a criminal case (beyond a reasonable doubt) with the lighter burden in a civil case (fair preponderance of the evidence) and explained the nature and degree of "doubt” to be considered, based upon the evidence or lack of evidence, not speculation or prejudice. In doing so, the court defined "reasonable doubt” and instructed that, if the evidence were evenly balanced, the prosecution had not sustained its burden of proving each element of the crime beyond a reasonable doubt and, in such case, the jury would be obligated to return a verdict of not guilty. Unlike the situation in People v Wade (99 AD2d 474), the charge here did not create such a negative inference, so as to lead the jury to believe that something less than guilt beyond a reasonable doubt would be sufficient to sustain a conviction. Thus, under the circumstances in this case, the trial court’s instructions did not unduly prejudice defendant so as to require a new trial. (See, People v Thompson, 97 AD2d 554.) Contrary to the observation by our dissenting colleague, defendant did not object to the charge as improperly shifting [815]*815the burden of proof. The only objection to that portion of the charge was that it was confusing. Nor was the general exception to the charge as a whole at all sufficient to preserve the issue for appellate review. (See, People v West, 56 NY2d 662.)
Nor do we agree with the dissent that there was any error in the trial court’s marshaling of the evidence, which was unbiased and evenly balanced. In summarizing the evidence, the Trial Justice not only made reference to the proof which had been offered by the prosecution, but also pointed to the evidence on defendant’s case, including the testimony of his mother that he did not own an orange jump suit. Considering the charge as a whole and the fact that, in this relatively short trial, it was carefully brought to the attention of the jury that the prime issue was whether it was defendant who had actually committed the crime, we do not perceive any basis on this record to interfere with the jury’s determination of factual questions relating to the issues of identification and credibility, which were peculiarly within the province of the jury. Concur — Sullivan, J. P., Asch, Fein, and Kassal, JJ.; Rosenberger, J., dissents in a separate memorandum.