Opinion
March 10, 1992
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Defendant and an accomplice robbed the owners of a bodega at gunpoint. Defendant, who had patronized the store in the past, was known to the victims. Defendant argues that the trial court diminished the proper burden of proof by charging the jury that identity must be established "with sufficient certainty to preclude a reasonable possibility of a mistake". This argument is unpreserved, as a matter of law (CPL 470.05), and we decline to review it in the interest of justice. Were we to consider the issue, we would nevertheless affirm. We have previously held that although this language constitutes error (People v Velez, 169 A.D.2d 661; see also, People v Reyes, 151 A.D.2d 435, 438 ["`reasonable certainty'"]), the error will be considered harmless where the charge as a whole conveys the proper legal standard, i.e., proof beyond a reasonable doubt (People v Velez, supra; People v Vasquez, 176 A.D.2d 444). Here, the trial court repeatedly charged the applicable standard, that of proof beyond a reasonable doubt, with respect to both the People's burden of proof in general, and with respect to the identification evidence, in particular.
Further, the court's instructions, as raised in the pro se brief, were proper and merely clarified the concepts of acting in concert and constructive possession of a weapon and did not take the fact finding function from the jury.
Concur — Murphy, P.J., Wallach, Kupferman and Ross, JJ.