People v. Rivera

224 A.D.2d 295, 642 N.Y.S.2d 206, 1996 N.Y. App. Div. LEXIS 1093

Opinion

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered May 20, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 5 to 15 years, unanimously affirmed.

The verdict was based on legally sufficient evidence, namely the victim’s eyewitness identification testimony (see, People v Johnson, 57 NY2d 969, 971), and was not against the weight of the evidence. The issues raised by defendant concerning the credibility of this witness, including those that arose from inconsistencies between his testimony at trial and before the Grand Jury concerning the various roles played by the three perpetrators of the robbery, were properly placed before the jury, and we find no reason to disturb its determination. Defendant’s claims that the court improperly charged the jury on the issue of identification and reasonable doubt are unpreserved for appellate review as a matter of law, and we decline to review them in the interest of justice. If we were to review them, we would find that the charge as a whole conveyed the proper burden of proof on the issue of identification (see, People v Vasquez, 181 AD2d 459, lv denied 79 NY2d 1055), and, with respect to reasonable doubt, did not convey that a juror had an affirmative obligation to give a reason for such doubt (see, People v Antommarchi, 80 NY2d 247, 251-253). Concur — Sullivan, J. P., Milonas, Ellerin, Rubin and Kupferman, JJ.