People v. Perez

572 N.E.2d 41, 77 N.Y.2d 928, 569 N.Y.S.2d 600, 1991 N.Y. LEXIS 530

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We conclude that the trial court did not err in failing to grant defendant’s request for an expanded charge on the evaluation of the identification evidence. Although we deem it "the better practice * * * to grant a defendant’s request and give the expanded charge” when appropriate (People v Whalen, 59 NY2d 273, 279), such a charge was not required in this case. It cannot be said that this case involved a "close question of identity” (id., at 278). The evidence of defendant’s identity included the testimony of a witness that defendant confessed to the crime and proof of the victim’s personal knowledge of defendant, defendant and the victim having lived at the same residence for two years. The remaining issue, whether the trial court should have instructed the jury that defendant’s identity had to be proven beyond a reasonable doubt, is not preserved for our review (see, People v Jackson, 76 NY2d 908; People v Karabinas, 63 NY2d 871).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.