Opinion
October 11, 1994
Appeal from the Supreme Court, Bronx County (Lawrence J. Tonetti, J.).
There is no merit to defendant's contention that the identification testimony of the eyewitness was incredible as a matter of law (see, People v. Hernandez, 173 A.D.2d 382, lv denied 78 N.Y.2d 967). The jury was informed of the fact that the witness was a convicted felon and that he had violated his probation. Moreover, the witness was seated across from the perpetrator for about 5 minutes, during which he gazed directly at him for a period of some 2 1/2 to 3 minutes. It is also not insignificant that, shortly after the commission of the crime, the witness furnished the police with a description that closely matched that of defendant. In these circumstances, the jury was certainly warranted in crediting the witness' account (see, People v Mack, 165 A.D.2d 736).
Defendant's failure to object to the trial court's charge on second degree assault renders unpreserved for appeal his claim that the jury was incorrectly instructed (see, People v Capriles, 198 A.D.2d 57, lv denied 83 N.Y.2d 870). Were we to consider this argument in the interest of justice, we would find that the court's charge, when viewed as a whole, conveyed the proper standard to the jury (see, People v. Coleman, 70 N.Y.2d 817). Nor is there merit to defendant's argument that the court was in error in denying his motion to dismiss pursuant to CPL 30.30.
Concur — Ellerin, J.P., Kupferman, Asch, Nardelli and Tom, JJ.