Opinion
Decided April 4, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Jay Gold, J.
E. Joshua Rosenkranz for appellant.
Robert M. Morgenthau, District Attorney (Karen Heiss Eisen and Phyllis A. Monroe of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
We conclude that the trial court did not err in failing to grant defendant's request for an expanded charge on the evaluation of the identification evidence. Although we deem it "the better practice * * * to grant a defendant's request and give the expanded charge" when appropriate (People v Whalen, 59 N.Y.2d 273, 279), such a charge was not required in this case. It cannot be said that this case involved a "close question of identity" (id., at 278). The evidence of defendant's identity included the testimony of a witness that defendant confessed to the crime and proof of the victim's personal knowledge of defendant, defendant and the victim having lived at the same residence for two years. The remaining issue, whether the trial court should have instructed the jury that defendant's identity had to be proven beyond a reasonable doubt, is not preserved for our review (see, People v Jackson, 76 N.Y.2d 908; People v Karabinas, 63 N.Y.2d 871).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.