People v. Nonsky

221 A.D.2d 377, 633 N.Y.S.2d 201, 1995 N.Y. App. Div. LEXIS 11591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered February 24, 1992, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal, the defendant contends that the court improperly used a hypothetical in connection with its instructions on reasonable doubt relating to the witnesses’ identification of the defendant, thus constituting a direct rejection of his defense of mistaken identity, and thereby depriving him of a fair trial.

The challenge to the use of the hypothetical is unpreserved for appellate review (see, CPL 470.05 [2]; People v Scott, 208 AD2d 964; People v Udzinski, 146 AD2d 245). In any event, the defendant’s argument lacks merit. The charge, viewed in its entirety, was unquestionably a correct statement of the law (see, People v Coleman, 70 NY2d 817) and reserved the question of identification to the jury. Thus, there is no basis for concluding that the jury could not follow the court’s instructions (see, People v Scott, supra; People v Griffith, 200 AD2d 760; People v Ross, 184 AD2d 670).

The. defendant’s remaining contentions regarding the supplemental charges are unpreserved for appellate review and, in any event, do not warrant reversal. Ritter, J. P., Pizzuto, Santucci and Krausman, JJ., concur.