Opinion
December 5, 1994
Appeal from the Supreme Court, Kings County (Lipp, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the court's charge to the jury was adequate under the circumstances of this case since it clearly instructed the jury that identification had to be proven beyond a reasonable doubt and reiterated many times that the burden of proof was on the People (see, People v Thompson, 202 A.D.2d 454; People v Maxwell, 184 A.D.2d 661). Viewed in its entirety, the court's charge made clear that the defendant bore no burden of proof (see, People v Coleman, 70 N.Y.2d 817; People v Canty, 60 N.Y.2d 830). The court's statement to the jury that its function was to determine "where the truth lies", taken in context, neither shifted the burden of proof to the defendant nor diluted the People's burden of proof (see, People v Griffith, 200 A.D.2d 760; People v Moore, 185 A.D.2d 251; People v Jones, 173 A.D.2d 487).
Finally, the challenged comment in the prosecutor's summation was a fair response to defense counsel's summation (see, People v Arce, 42 N.Y.2d 179; People v Griffith, 200 A.D.2d 760, supra). Copertino, J.P., Pizzuto, Santucci and Florio, JJ., concur.