Opinion
March 28, 1991
Appeal from the Supreme Court, New York County, Daniel P. Fitz-Gerald, J.
Defendant's conviction arises out of the knifepoint robbery of Dominga Fermin on June 6, 1988, during which her money and gold chain were stolen. At trial, the complaining witness identified defendant as the robber on the basis of her observations of him during the robbery and on several occasions thereafter when she encountered him in the vicinity of her apartment building. Defendant introduced testimony at trial that the complaining witness, who spoke limited English, was unable to convey specific identification details to a police detective, who spoke only English.
This court finds no merit to defendant's argument on appeal that the trial court's charge on identification was improper. The record reveals that the trial court fulfilled its obligation to marshal the evidence to the extent necessary to explain the application of the law (CPL 300.10; People v Thomas, 166 A.D.2d 624). The trial court specifically indicated to the jury that the evidence was being marshalled in the context of the contentions of the respective parties. The court went on to instruct the jury that it must consider all the evidence in the case regarding the identification issue and determine the weight, if any, to be accorded such evidence, and that it was the jury's function to determine whether all of the evidence in the case convinced them beyond a reasonable doubt that defendant was the "right man", failing which they must find the defendant not guilty. Thus, in no way did the trial court's jury charge usurp the jury's fact-finding function or deprive defendant of a fair trial (see, People v Culhane, 45 N.Y.2d 757, cert denied 439 U.S. 1047).
Concur — Carro, J.P., Rosenberger, Ellerin, Kassal and Rubin, JJ.