Opinion
February 17, 1987
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
The defendant argues, for the first time on appeal, that the trial court erred in failing to charge the jury that the prosecution must prove the defendant's identity as the perpetrator beyond a reasonable doubt (see, People v. Whalen, 59 N.Y.2d 273). This argument is beyond the scope of our review as a matter of law, however, since the record reflects that the defendant neither requested such a charge nor excepted to the charge which was delivered (see, CPL 470.15). We find, furthermore, that the particular circumstances of this case do not warrant a new trial in the interest of justice (see generally, People v. Blake, 124 A.D.2d 666; People v. McCorkle, 119 A.D.2d 700; People v. Higgins, 118 A.D.2d 585; People v Beasley, 114 A.D.2d 415). Initially, we note that other than the identification issue, the trial was error free. We further note that the identification testimony of the two victims was corroborated by proof that one victim was approached by the defendant in a subway station some time after the incident, and by proof that the other victim not only recognized the defendant as the perpetrator because of his appearance, but had also recognized his voice as that of the perpetrator. This evidence, among other proof, clearly distinguishes this case from those in which we have found a new trial to be warranted in the interest of justice (cf., People v. Chandler, 120 A.D.2d 542; People v Lyons, 106 A.D.2d 471). Accordingly, the judgment under review should be affirmed. Weinstein, Rubin and Spatt, JJ., concur.
Brown, J.P., dissents and votes to reverse the judgment appealed from, as an exercise of discretion in the interest of justice, and to order a new trial, with the following memorandum: The central issue for the jury to resolve in this case was whether the complaining witnesses were mistaken with respect to their identification of the defendant as the perpetrator of the robbery. Under the circumstances, the failure of the trial court to provide the jury with any direction whatever on the issue of identification or to indicate that the prosecution had the burden of proving identity beyond a reasonable doubt, warrants a reversal, despite the fact that the defendant failed to preserve this issue for review as a matter of law (see, People v. Whalen, 59 N.Y.2d 273; People v. Klemm, 124 A.D.2d 826; People v. Chandler, 120 A.D.2d 542; People v. Jones, 108 A.D.2d 824; People v. Lyons, 106 A.D.2d 471; People v. Hollis, 106 A.D.2d 462; People v. Daniels, 88 A.D.2d 392).